<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 2, 1998
------------------
PROFFITT'S, INC.
----------------
(Exact name of Registrant as specified in charter)
Tennessee 1-13113 62-0331040
------------------- -------------------- -------------------
(State or Other (Commission File Number) (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation)
750 Lakeshore Parkway
Birmingham, Alabama 35211
-----------------------------------------------------------------------
(Address of principal executive offices, including zip code)
(205) 940-4000
------------------------------------------------------------------
(Registrant's telephone number, including area code)
<PAGE>
ITEM 5. OTHER EVENTS.
- ----------------------
On February 2, 1998, Proffitt's, Inc. ("Proffitt's") entered into a new
unsecured Credit Agreement with a group of financial institutions increasing its
available credit facilities from $400,000,000 to $600,000,000, including a
$100,000,000 letter of credit facility and a $50,000,000 swing line. The new
facility has reduced spreads over the various reference rates of interest and
has less restrictive covenants that reflect the upgrade of Proffitt's long-term
unsecured debt ratings.
The forgoing is qualified in its entirety by reference to the Credit
Agreement and the LC Account Agreement, copies of which are attached as exhibits
hereto and which are hereby incorporated by reference herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
- ---------------------------------------------------------------------------
(c ) Exhibits.
10.1 Credit Agreement, dated February 2, 1998, by and among Proffitt's,
Inc., as Borrower, the Lenders from time to time party thereto and
NationsBank, N.A., as Agent and Deutsche Bank AG, New York Branch
and/or Cayman Islands Branch, Morgan Guaranty Trust Company of New
York and Bank of America National Trust & Savings Association as Co-
Agents.
10.2 LC Account Agreement, dated February 2, 1998, by and between
Proffitt's, Inc., and NationsBank, N.A., as Agent.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PROFFITT'S, INC.
Date: February 12, 1998 By: /s/ Douglas E. Coltharp
-----------------------
Douglas E. Coltharp
Executive Vice President and
Chief Financial Officer
3
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
------- -----------
10.1 Credit Agreement, dated February 2, 1998, by and among
Proffitt's, Inc., as Borrower, the Lenders from time to time
party thereto and NationsBank, N.A., as Agent and Deutsche
Bank AG, New York Branch and/or Cayman Islands Branch, Morgan
Guaranty Trust Company of New York and Bank of America
National Trust & Savings Association as Co-Agents.
10.2 LC Account Agreement, dated February 2, 1998, by and between
Proffitt's, Inc., and NationsBank, N.A., as Agent.
4
<PAGE>
EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
by and among
PROFFITT'S, INC.,
as Borrower,
The Lenders from time to time party hereto
and
NATIONSBANK, N. A.,
as Agent
and
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
and
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
as Co-Agents
February 2, 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<C> <S> <C>
ARTICLE I
Definitions and Terms
1.01 Definitions......................................................................... 2
1.02 Accounting Terms.................................................................... 23
1.03 Terms Consistent.................................................................... 23
<CAPTION>
ARTICLE II
The Loans
2.01 Revolving Credit Loans............................................................... 24
2.02 Swing Line........................................................................... 26
2.03 Payment of Interest.................................................................. 27
2.04 Payment of Principal................................................................. 28
2.05 Payments; Non-Conforming Payments.................................................... 28
2.06 Borrower's Account................................................................... 29
2.07 Notes................................................................................ 29
2.08 Pro Rata Payments.................................................................... 29
2.09 Reductions........................................................................... 29
2.10 Conversions and Elections of Subsequent Interest Periods............................. 30
2.11 Unused Fee........................................................................... 30
2.12 Deficiency Loans..................................................................... 31
2.13 Use of Proceeds...................................................................... 31
2.14 Additional Fees...................................................................... 31
<CAPTION>
ARTICLE III
Letters of Credit
3.01 Letters of Credit................................................................... 32
3.02 Reimbursement....................................................................... 32
3.03 Letter of Credit Fee................................................................ 35
3.04 Administrative Fees................................................................. 35
3.05 Existing Letters of Credit.......................................................... 36
<CAPTION>
ARTICLE IV
Change in Circumstances
4.01 Increased Cost and Reduced Return.................................................. 37
4.02 Limitation on Types of Loans....................................................... 38
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
4.03 Illegality......................................................................... 38
4.04 Treatment of Affected Loans........................................................ 39
4.05 Compensation....................................................................... 39
4.06 Taxes.............................................................................. 40
<CAPTION>
ARTICLE V
Conditions to Making Loans and Issuing Letters of Credit
5.0 Conditions of Initial Loan and Issuance of Letters of Credit ........................ 43
5.02 Conditions of Loans.................................................................. 45
<CAPTION>
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties....................................................... 47
<CAPTION>
ARTICLE VII
Affirmative Covenants
7.01 Financial Reports, Etc.............................................................. 54
7.02 Maintain Properties................................................................. 55
7.03 Existence, Qualification, Etc....................................................... 55
7.04 Taxes............................................................................... 55
7.05 Insurance........................................................................... 56
7.06 True Books.......................................................................... 56
7.07 Right of Inspection................................................................. 56
7.08 Observe All Laws; Licenses.......................................................... 56
7.09 Covenants Extending to Subsidiaries................................................. 56
7.10 Officer's Knowledge of Default...................................................... 56
7.11 Suits or Other Proceedings.......................................................... 56
7.12 Notice of Discharge of Hazardous Material or Environmental Complaint................ 57
7.13 Environmental Compliance............................................................ 57
7.14 Indemnification..................................................................... 57
7.15 Further Assurances.................................................................. 57
7.16 Benefit Plans....................................................................... 57
7.17 Continued Operations................................................................ 58
7.18 New Subsidiaries.................................................................... 58
<CAPTION>
ARTICLE VIII
Negative Covenants
8.01 Consolidated Net Worth.............................................................. 60
8.02 Consolidated Fixed Charge Ratio..................................................... 60
</TABLE>
ii
<PAGE>
<TABLE>
<C> <S> <C>
8.03 Consolidated Funded Total Indebtedness to Consolidated EBITDA....................... 60
8.04 Indebtedness........................................................................ 60
8.05 Liens............................................................................... 62
8.06 Transfer of Assets.................................................................. 63
8.07 Investments; Acquisitions........................................................... 63
8.08 Merger or Consolidation............................................................. 64
8.09 Transactions with Affiliates........................................................ 64
8.10 Benefit Plans....................................................................... 65
8.11 Fiscal Year......................................................................... 65
8.12 Dissolution, etc.................................................................... 65
8.13 Rate Hedging Obligations............................................................ 66
<CAPTION>
ARTICLE IX
Events of Default and Acceleration
9.02 Events of Default................................................................... 67
9.02 Agent to Act........................................................................ 70
9.03 Cumulative Rights................................................................... 70
9.04 No Waiver........................................................................... 70
9.05 Allocation of Proceeds.............................................................. 71
<CAPTION>
ARTICLE X
The Agent
10.01. Appointment, Powers, and Immunities............................................... 72
10.02. Reliance by Agent................................................................. 72
10.03. Defaults.......................................................................... 72
10.04. Rights as Lender.................................................................. 73
10.05. Indemnification................................................................... 73
10.06. Non-Reliance on Agent and Other Lenders........................................... 73
10.07. Resignation of Agent.............................................................. 74
<CAPTION>
ARTICLE XI
Miscellaneous
11.01 Assignments and Participations...................................................... 75
11.02 Notices............................................................................. 76
11.03 Confidentiality..................................................................... 78
11.04 Right of Setoff; Adjustments........................................................ 78
11.05 Survival............................................................................ 79
11.06 Expenses............................................................................ 79
11.07 Amendments and Waivers.............................................................. 79
11.08 Counterparts........................................................................ 79
11.09 Termination......................................................................... 79
</TABLE>
iii
<PAGE>
<TABLE>
<C> <S> <C>
11.10 Governing Law....................................................................... 80
11.11 Indemnification..................................................................... 80
11.12 Headings and References............................................................. 81
11.13 Severability........................................................................ 82
11.14 Entire Agreement.................................................................... 82
11.15 Agreement Controls.................................................................. 82
11.16 Usury Savings Clause................................................................ 82
11.17 Status of Debt...................................................................... 83
11.18 Waiver of Jury Trial................................................................ 83
11.19 Removal of Lenders.................................................................. 83
11.20 Guaranty Terminations............................................................... 83
11.21 Termination of Existing Credit Agreement............................................ 84
EXHIBIT A Revolving Credit Commitments.................................................. A-1
EXHIBIT B Form of Assignment and Acceptance............................................. B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative............ C-1
EXHIBIT D Form of Borrowing Notice--Revolving Credit Loans and Swing Line Loans......... D-1
EXHIBIT E Form of Guaranty Agreement.................................................... E-1
EXHIBIT E-1 Form of Guarantor Joinder Agreement........................................... E-1-1
EXHIBIT F Form of Revolving Credit Notes................................................ F-1
EXHIBIT G Form of Swing Line Note....................................................... G-1
EXHIBIT H Interest Rate Selection Notice................................................ H-1
EXHIBIT I Form of Opinion of Counsel to the Borrower and Counsel to the Guarantors...... I-1
EXHIBIT J Compliance Certificate........................................................ J-1
</TABLE>
<TABLE>
<C> <S>
Schedule 6.01(d) Subsidiaries and Investments in Other Persons................................
Schedule 6.01(f) Contingent Liabilities.......................................................
Schedule 6.01(g) Liens........................................................................
Schedule 6.01(h) Tax Matters..................................................................
Schedule 6.01(j) Litigation...................................................................
Schedule 6.01(m) Patents......................................................................
Schedule 6.01(o) Consents.....................................................................
Schedule 8.04 Indebtedness.................................................................
</TABLE>
iv
<PAGE>
CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT, dated as of February 2, 1998 (the "Agreement"), is
made by and among:
PROFFITT'S, INC., a Tennessee corporation having its principal place of
business in Birmingham, Alabama (the "Borrower"); and
Each lender executing and delivering a signature page hereto and each other
lender which may hereafter execute and deliver an instrument of assignment with
respect to this Agreement pursuant to Section 11.01 hereof (hereinafter such
-------------
lenders may be referred to individually as a "Lender" or collectively as the
"Lenders"); and
NATIONSBANK, N. A., a national banking association organized and existing
under the laws of the United States of America ("NationsBank"), in its capacity
as agent for the Lenders (in such capacity, the "Agent"); and
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH, MORGAN
GUARANTY TRUST COMPANY OF NEW YORK and BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, each in their capacity as co-agents for the Lenders;
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower, the Agent and certain of the Lenders are party to
that certain Second Amended and Restated Credit Facilities and Reimbursement
Agreement dated as of June 26, 1997 (the "Existing Credit Agreement") which will
be repaid in full and terminated in connection with the execution and delivery
of this Agreement; and
WHEREAS, the Borrower has requested the Lenders make available to the
Borrower a revolving credit facility in the maximum aggregate principal amount
at any time outstanding of $600,000,000, which shall include (i) a standby
letter of credit facility of $100,000,000 and (ii) a swing line facility of
$50,000,000, the proceeds of which are to be used to repay all loans outstanding
and unpaid interest accrued thereon under the Existing Credit Agreement, to
provide working capital, to finance capital expenditures, to finance Permitted
Acquisitions and to provide for the general corporate purposes of the Borrower;
and
WHEREAS, the Lenders are willing to make all such facilities available to
the Borrower upon the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS AND TERMS
---------------------
1.01 DEFINITIONS. For the purposes of this Agreement, in addition to the
-----------
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition, including without limitation by
-----------
means of merger or consolidation, by the Borrower or any Subsidiary of (i)
a controlling equity interest in another Person (including the purchase of
an option, warrant or convertible or similar type security to acquire such
a controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise of
an option or warrant for, or conversion of securities into, such equity
interest, (ii) assets of another Person which constitute all or
substantially all of the assets of such Person or (iii) a Business Unit;
"Adjusted Eurodollar Rate" means, for any Eurodollar Loan for any
------------------------
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Agent to be equal
to the sum of (i) the quotient obtained by dividing (x) the Eurodollar Rate
---
for such Eurodollar Loan for such Interest Period by (y) the difference of
1 minus the Reserve Requirement for such Eurodollar Loan for such Interest
-----
Period plus (ii) the Applicable Interest Addition;
----
"Affiliate" means a Person (i) which directly or indirectly through
---------
one or more intermediaries controls, or is controlled by, or is under
common control with, the Borrower, (ii) which beneficially owns or holds
10% or more of any class of the outstanding voting stock (or in the case of
a Person which is not a corporation, 10% or more of the equity interest) of
the Borrower, or (iii) 10% or more of any class of the outstanding voting
stock (or in the case of a Person which is not a corporation, 10% or more
of the equity interest) of which is beneficially owned or held by the
Borrower. The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting stock, by
contract or otherwise;
"Alternative Rating Agency" has the meaning assigned to such term in
-------------------------
the definition of "Applicable Interest Addition" in Section 1.01 hereof;
------------
"Applicable Commitment Percentage" means, at any time for each Lender with
--------------------------------
respect to the Revolving Credit Facility (including its Participations and its
obligations hereunder to the Issuing Bank and Swing Line Lender to acquire
Participations), a fraction (expressed as a percentage), (i) the numerator of
--------
which shall be the amount of such Lender's Revolving Credit Commitment at such
date of determination (which Revolving Credit Commitment for each Lender as of
the Closing Date is set forth in Exhibit A attached hereto and incorporated
---------
herein by reference), and (ii) the denominator of which shall be the Total
Revolving Credit Commitment at such date of determination; provided, that each
--------
Applicable Commitment Percentage of each Lender shall be increased or decreased
to reflect any assignments to or by such Lender effected in accordance with
Section 11.01 hereof;
2
<PAGE>
"Applicable Interest Addition" means for each Eurodollar Loan (and
----------------------------
with respect to the fee per annum set forth in Section 3.03(i) hereof) that
---------------
percent per annum set forth below, which shall be (i) determined based upon
the rating of each rated class of the Borrower's long-term, senior
unsecured Indebtedness for Money Borrowed, including without limitation
Indebtedness hereunder (the "Rated Debt") assigned by S&P and Moody's (or
to the extent permitted as described below, such other Alternative Rating
Agency) (the "Debt Rating") as specified below and (ii) applicable to all
Eurodollar Loans existing on and after the first date a specific Debt
Rating is effective and continuing until, but not including, the date any
change in such Debt Rating is effective (the "Debt Rating Date"):
<TABLE>
<CAPTION>
Applicable
Interest Addition
Level Debt Rating (Eurodollar spread)
- ----- ----------- -------------------
<S> <C> <C>
I Less than or equal to BB- by S&P and Ba3 by Moody's 1.000%
II BB by S&P and Ba2 by Moody's 0.750%
III BB+ by S&P and Ba1 by Moody's 0.625%
IV BBB- by S&P and Baa3 by Moody's 0.500%
V Greater than or equal to BBB by S&P
and Baa2 by Moody's 0.400%
</TABLE>
As of the date hereof, the initial Applicable Interest Addition equals
______%.
In the event that the Debt Ratings assigned by S&P and Moody's differ
by one rating level, the Applicable Interest Addition shall be determined
by reference to the rating level having the higher Debt Rating without
regard to the lower Debt Rating. In the event that the Debt Ratings
assigned by S&P and Moody's differ by more than one rating level, the
Applicable Interest Addition shall be determined by reference to the Debt
Rating which is one rating level higher than the lower assigned Debt Rating
without regard to the higher assigned Debt Rating. The final Debt Rating
level by which the Applicable Interest Addition is determined may be
referred to herein as a "Level". By way of illustration and not limitation,
if S&P assigned a rating of BB (i.e., Level II) and Moody's assigns a
rating of Ba1 (i.e., Level III), the Applicable Interest Addition will be
0.625%; however if S&P assigns a rating of BB-(i.e., Level I) and Moody's
assigns a rating of Baa2 (i.e., Level V), the Applicable Interest Addition
will be 0.750%.
In the event that either S&P or Moody's (but not both) shall not make
a rating of any class of Rated Debt, the above calculations shall be made
based on (i) the rating provided by S&P or Moody's, whichever shall then
maintain a current rating, of the Rated Debt and (ii) the rating provided
---
by a nationally recognized securities rating agency selected by the
3
<PAGE>
Borrower and approved by the Agent, which shall be substituted for either
S&P or Moody's, as the case may be (the "Alternative Rating Agency"), of
the Rated Debt and the Alternative Rating Agency's equivalent rating levels
shall be substituted for the Debt Rating levels of either S&P or Moody's,
whichever shall no longer then make the applicable Debt Rating; provided
--------
further; in the event that no Alternative Rating Agency shall make a rating
-------
of each class of Rated Debt and (i) only one of S&P or Moody's shall then
make a Debt Rating, the Applicable Interest Addition shall be determined by
the Debt Rating which is one Level lower than the Debt Rating assigned by
S&P or Moody's, as applicable (e.g., if only Moody's provides a Debt Rating
and such Debt Rating is Level V, the Applicable Interest Addition shall be
0.500%); or (ii) neither S&P or Moody's shall then make a Debt Rating, the
Applicable Interest Addition shall be 1.000% (i.e., Level I).
"Applicable Lending Office" means, for each Lender and for each Type
-------------------------
of Loan, the "Applicable Lending Office" of such Lender (or of an affiliate
of such Lender) designated for such Type of Loan on the signature pages
hereof or such other office of such Lender (or an affiliate of such Lender)
as such Lender may from time to time specify to the Agent and the Borrower
by written notice in accordance with the terms hereof as the office by
which its Loans of such Type are to be made and maintained;
"Applicable Unused Fee" means, at any time, that percent per annum set
---------------------
forth in the table below corresponding to the Level at which the Applicable
Interest Addition is then determined in accordance with the definition
thereof:
Applicable
----------
Level Unused Fee
----- ----------
I 0.250%
II 0.200%
III 0.200%
IV 0.150%
V 0.125%
Any change in the Level at which the Applicable Interest Addition is
determined shall result in a corresponding and simultaneous change in the
Applicable Unused Fee;
"Applications and Agreements for Letters of Credit" means,
-------------------------------------------------
collectively, the Applications and Agreements for Letters of Credit
executed by the Borrower from time to time and delivered to the Issuing
Bank to support the issuance of Letters of Credit;
4
<PAGE>
"Assignment and Acceptance" means an Assignment and Acceptance
-------------------------
substantially in the form of Exhibit B attached hereto and incorporated
---------
herein by reference (with blanks appropriately filled in) delivered to the
Agent in connection with an assignment of a Lender's interest under this
Agreement pursuant to Section 11.01;
-------------
"Authorized Representative" means any of the Chairman, Vice Chairmen,
-------------------------
President or Executive Vice Presidents of the Borrower and, with respect to
financial matters, the Treasurer or chief financial officer of the Borrower
or any other person expressly designated by the Board of Directors of the
Borrower (or the appropriate committee thereof) as an Authorized
Representative of the Borrower, as set forth from time to time in a
certificate substantially in the form attached hereto as Exhibit C and
---------
incorporated herein by reference;
"Base Rate" means, for any day, the rate per annum equal to the higher
---------
of (a) the Federal Funds Rate for such day plus one-half of one percent
(.5%) and (b) the Prime Rate for such day. Any change in the Base Rate due
to a change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or Federal Funds
Rate;
"Base Rate Loan" means any Loan for which the rate of interest is
--------------
determined by reference to the Base Rate;
"Board" means the Board of Governors of the Federal Reserve System (or
-----
any successor body);
"Borrower's Account" means demand deposit account number 125-281-4250
------------------
with the Agent, or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the Agent;
"Borrower's Audited Statements" has the meaning assigned thereto in
-----------------------------
Section 6.01(f) hereof;
---------------
"Borrowing Notice" means the notice delivered by an Authorized
----------------
Representative in connection with a Loan under the Revolving Credit
Facility, in substantially the form attached hereto as Exhibit D and
---------
incorporated herein by reference;
"Business Day" means any day which is not a Saturday, Sunday or a day
------------
on which banks in the State of North Carolina are authorized or obligated
by law, executive order or governmental decree to be closed;
"Business Unit" means (i) one or more retail stores, warehouses or
-------------
distribution centers, including the related land, buildings and trade
fixtures of a Person or a division of a Person, which may, but is not
required to, include inventory, receivables, furniture, fixtures and
equipment, and intangible and other assets related to such retail stores,
warehouses or distribution centers or (ii) all or substantially all of a
line or lines of business conducted by a Person or a division of a Person;
5
<PAGE>
"Capital Leases" means all leases which have been or should be
--------------
capitalized in accordance with Generally Accepted Accounting Principles as
in effect from time to time including Statement No. 13 of the Financial
Accounting Standards Board and any successor thereof;
"Carson" means Carson Pirie Scott & Co., an Illinois corporation;
------
"Carson Acquisition" has the meaning assigned thereto in Section
------------------ -------
5.01(a)(xiv) hereof;
------------
"Carson Acquisition Agreement" has the meaning assigned thereto in
----------------------------
Section 5.01(a)(xvi) hereof;
------- ------------
"Combined Six Month Statements" has the meaning assigned such term in
-----------------------------
Section 6.01(f) hereof;
---------------
"Closing Date" means the date on which the conditions set forth in
------------
Section 5.01 hereof have been satisfied;
------------
"Code" means the Internal Revenue Code of 1986, as amended, any
----
successor provision or provisions and any regulations promulgated
thereunder;
"Common Stock" means the common stock, par value $.10 per share, of
------------
the Borrower;
"Consistent Basis" in reference to the application of Generally
----------------
Accepted Accounting Principles means the accounting principles observed in
the period referred to are comparable in all material respects to those
applied in the preparation of the audited financial statements of the
Borrower delivered to the Agent and each Lender for the Borrower's Fiscal
Year ended January 31, 1998, which accounting principles shall be the same
in all material respects as those accounting principles applied in the
preparation of the Combined Six Month Statements;
"Consolidated EBITDA" means, with respect to the Borrower and its
-------------------
Subsidiaries for any period of computation thereof, the sum of, without
---
duplication, (i) Consolidated Net Income, plus (ii) Consolidated Interest
----
Expense, plus (iii) taxes on income, plus (iv) amortization, plus (v)
---- ---- ----
depreciation, all determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis;
provided, however, that (x) extraordinary and unusual charges incurred by
-------- -------
the Borrower directly as a result of (A) the Carson Acquisition effective
January 31, 1998, the Acquisition by the Borrower of Parisian, Inc.
effective October 11, 1996, the Acquisition by the Borrower of Younkers,
Inc. effective February 3, 1996, the Acquisition by the Borrower of G.R.
Herberger's, Inc. effective February 1, 1997, the prepayment of the Junior
Subordinated Debentures and the retirement of the Parisian Senior
Subordinated Notes, (B) the $3,100,000 undepreciated capital lease write-
off by Carson due to the termination by Carson of that certain computer
6
<PAGE>
mainframe lease in connection with Carson's Year 2000 compliance efforts,
as more fully disclosed by Carson on a Form 10-Q for the period ended
August 2, 1997 and (C) any Permitted Acquisition after the Closing Date in
an amount up to and including 10% of the Cost of Acquisition for such
Permitted Acquisition, and (y) any non-recurring, non-cash loss, shall all
be excluded from the computation of Consolidated Net Income; provided
--------
further, however, that effective as of the effective date of any
-------
Acquisition, Consolidated EBITDA shall be computed giving pro forma effect
to such Acquisition for each Four-Quarter Period then and thereafter
occurring until such Acquisition has been effective for a complete Four-
Quarter Period;
"Consolidated Financing Charges" means those charges owed and
------------------------------
allocated to third parties with respect to accounts receivable
securitizations transacted in the ordinary course of business;
"Consolidated Fixed Charge Ratio" means, with respect to the Borrower
-------------------------------
and its Subsidiaries for the Four-Quarter Period ending on the date of
computation thereof, the ratio of (i) Consolidated EBITDA plus Consolidated
----- ----
Financing Charges plus, to the extent deducted in arriving at Consolidated
----
EBITDA, lease, rental and all other payments made in respect of or in
connection with operating leases, to (ii) Consolidated Fixed Charges during
such Four-Quarter Period;
"Consolidated Fixed Charges" means, with respect to Borrower and its
--------------------------
Subsidiaries, for the periods indicated, the sum of, without duplication,
---
(i) Consolidated Interest Expense, plus (ii) to the extent deducted in
----
arriving at Consolidated EBITDA, lease, rental and all other payments made
in respect of or in connection with operating leases, plus (iii)
----
Consolidated Financing Charges, all determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis; provided further, however, that effective as of the
-------- -------
effective date of any Acquisition, such calculations shall be computed
giving pro forma effect to such Acquisition for each Four-Quarter Period
then and thereafter occurring until such Acquisition has been effective for
a complete Four-Quarter Period;
"Consolidated Funded Total Indebtedness" means, at any time as of
--------------------------------------
which the amount thereof is to be determined, all Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries (including, but not limited
to, all current maturities and borrowings under short term loans) plus the
face amount of all issued and outstanding standby letters of credit and all
obligations (to the extent not duplicative) arising under such letters of
credit, all determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Interest Expense" means, with respect to any period of
-----------------------------
computation thereof, the gross interest expense of the Borrower and its
Subsidiaries, including without limitation (i) the amortization of debt
discounts, (ii) the amortization of all fees (including, without
limitation, fees payable in respect of a Swap Agreement) payable in
connection with the incurrence of Indebtedness to the extent included in
interest expense and (iii) the portion of any payments made in connection
with Capital Leases allocable to interest expense, all
7
<PAGE>
determined on a consolidated basis in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Net Income" means, for any period of computation
-----------------------
thereof, the net income of the Borrower and its Subsidiaries as determined
on a consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis; but excluding as income: (i) net
gains on the sale, conversion or other disposition of capital assets and
net gains on the acquisition, retirement, sale or other disposition of
capital stock and other securities of the Borrower or its Subsidiaries,
(ii) any write-up of any asset, and (iii) any other net gain or credit of
an extraordinary nature, all determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Net Worth" means at any time as of which the amount
----------------------
thereof is to be determined, the shareholders' equity of the Borrower and
its Subsidiaries determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis
(excluding intercompany items among the Borrower and its Subsidiaries and
any upward adjustment after the Closing Date due to revaluation of assets);
"Consolidated Subordinated Debt" means (i) the Parisian Senior
------------------------------
Subordinated Notes and (ii) all other Consolidated Funded Total
Indebtedness which is by its terms subordinate to the Loans as required by,
and in substance acceptable to, the Agent;
"Consolidated Total Assets" means, as at any time of determination
-------------------------
thereof, the net book value of all assets of the Borrower and its
Subsidiaries as determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis;
"Contingent Obligation" of any Person means (i) all contingent
---------------------
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the consolidated financial statements
(including footnotes) of such Person in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis, including Statement
No. 5 of the Financial Accounting Standards Board, and (ii) all
reimbursement obligations of such Person with respect to any letter of
credit and all obligations of such Person guaranteeing or in effect
guaranteeing any Indebtedness of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, including obligations of
such Person however incurred:
(a) to purchase such Indebtedness or any property or assets
constituting security therefor;
(b) to advance or supply funds in any manner (x) for the purchase
or payment of such Indebtedness or (y) to maintain a minimum working
capital, net worth or other balance sheet condition or any income
statement condition of the primary obligor;
8
<PAGE>
(c) to grant or convey any lien, security interest, pledge,
charge or other encumbrance on any property or assets of such Person
to secure payment of such Indebtedness;
(d) to lease property or to purchase securities or other property
or services primarily for the purpose of assuring the owner or holder
of such Indebtedness of the ability of the primary obligor to make
payment of such Indebtedness; or
(e) otherwise to assure the owner of the Indebtedness of the
primary obligor against loss in respect thereof.
With respect to Contingent Obligations, such liabilities shall be computed
at the amount which, in light of all the facts and circumstances existing
at the time, represent the present value of the amount which can reasonably
be expected to become an actual or matured liability;
"Continue", "Continuation", and "Continued" shall refer to the
-------- ------------ ---------
continuation pursuant to Section 2.10 hereof of a Eurodollar Loan from one
------------
Interest Period to the next Interest Period;
"Convert", "Conversion", and "Converted" shall refer to a conversion
------- ---------- ---------
pursuant to Section 2.10 or Article IV of one Type of Loan into another
------------ -----------
Type of Loan;
"Cost of Acquisition" means, as at the date of closing any
-------------------
Acquisition, the sum of the following: (i) the value of the capital stock
---
or warrants or options to acquire capital stock of the Borrower or any
Subsidiary to be transferred in connection therewith, (ii) any cash or
other property (excluding property described in clause (i)) or the unpaid
principal amount of any debt instrument given as consideration in such
Acquisition, and (iii) any Indebtedness or liabilities assumed by the
Borrower or its Subsidiaries in connection with such Acquisition. For
purposes of determining the Cost of Acquisition for any transaction, (A)
the capital stock of the Borrower shall be valued (I) at its market value
as reported on the New York Stock Exchange or any national securities
exchange with respect to shares that are freely tradeable, and (II) with
respect to shares that are not freely tradeable, as determined by the Board
of Directors of the Borrower (which determination shall be conclusive), (B)
the capital stock of any Subsidiary shall be valued as determined by the
Board of Directors of such Subsidiary (which determination shall be
conclusive), and (C) with respect to any Acquisition accomplished pursuant
to the exercise of options or warrants or the conversion of securities, the
Cost of Acquisition shall include both the cost of acquiring such option,
warrant or convertible security as well as the cost of exercise or
conversion;
"Debt Rating" has the meaning assigned to such term in the definition
-----------
of "Applicable Interest Addition" in Section 1.01 hereof;
------------
"Debt Rating Date" has the meaning assigned to such term in the
----------------
definition of "Applicable Interest Addition" in Section 1.01 hereof;
------------
9
<PAGE>
"Default" means any event or condition which, with the giving or
-------
receipt of notice or lapse of time or both, would constitute an Event of
Default hereunder;
"Dollars" and the symbol "$" means dollars constituting legal tender
------- -
for the payment of public and private debts in the United States of
America;
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a Lender;
-----------------
and (iii) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 11.01, the Borrower, such approval not
--------------
to be unreasonably withheld or delayed by the Borrower or the Agent, as
applicable, and such approval to be deemed given by the Borrower if no
objection is received by the assigning Lender and the Agent from the
Borrower within five (5) Business Days after written notice of such
proposed assignment has been provided by the assigning Lender to the
Borrower; provided, however, that neither the Borrower nor an affiliate of
-------- -------
the Borrower shall qualify as an Eligible Assignee;
"Eligible Securities" means the following obligations and any other
-------------------
obligations previously approved in writing by the Agent:
(i) Government Securities;
(ii) the following debt securities of the following agencies or
instrumentalities of the United States of America if at all times the
full faith and credit of the United States of America is pledged to
the full and timely payment of all interest and principal thereof:
(a) all direct or fully guaranteed obligations of the United
States Treasury; and
(b) mortgage-backed securities and participation
certificates guaranteed by the Government National Mortgage
Association;
(iii) the following obligations of the following agencies or
instrumentalities of or corporations established by the United States
of America:
(a) participation certificates and debt obligations of the
Federal Home Loan Mortgage Corporation;
(b) consolidated debt obligations, and obligations secured
by a letter of credit, of the Federal Home Loan Banks; and
(c) debt obligations and mortgage-backed securities of the
Federal National Mortgage Association which have not had the
interest portion thereof severed therefrom;
10
<PAGE>
(iv) obligations of any corporation organized under the laws of
any state of the United States of America or under the laws of any
other nation, payable in the United States of America, expressed to
mature not later than 92 days following the date of issuance thereof
and rated in an investment grade rating category by S&P and Moody's;
(v) interest bearing demand or time deposits issued by any Lender
or certificates of deposit maturing within one year from the date of
acquisition issued by a bank or trust company organized under the laws
of the United States or of any state thereof having capital surplus
and undivided profits aggregating at least $500,000,000 and being
rated A- or better by S&P or A-3 or better by Moody's;
(vi) Repurchase Agreements;
(vii) Pre-Refunded Municipal Obligations;
(viii) shares of mutual funds which invest in obligations
described in paragraphs (i) through (iii) above, the shares of which
mutual funds are at all times rated "AAA" by S&P; and
(ix) asset-backed remarketed certificates of participation
representing a fractional undivided interest in the assets of a trust,
which certificates are rated at least "A-1" by S&P and "P-1" by
Moody's.
Obligations listed in paragraphs (i), (ii) and (iii) above which are in
book-entry form must be held in a trust account with the Federal Reserve
Bank or with a clearing corporation or chain of clearing corporations which
has an account with the Federal Reserve Bank;
"Environmental Laws" means any federal, state or local statute, law,
------------------
ordinance, code, rule, regulation, order, decree, permit or license
regulating, relating to, or imposing liability or standards of conduct
concerning, any environmental matters or conditions, environmental
protection or conservation, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended;
the Superfund Amendments and Reauthorization Act of 1986, as amended; the
Resource Conservation and Recovery Act, as amended; the Toxic Substances
Control Act, as amended; the Clean Air Act, as amended; the Clean Water
Act, as amended; together with all regulations promulgated thereunder, and
any other "Superfund" or "Superlien" law;
"ERISA" means, at any date, the Employee Retirement Income Security
-----
Act of 1974, as amended, and the regulations thereunder, all as the same
shall be in effect at such date;
"Eurodollar Business Day" means a domestic Business Day and one on
-----------------------
which the relevant international financial markets are open for the
transaction of the business contemplated by this Agreement (including
without limitation dealings in U.S. Dollar deposits) in London, England,
New York, New York and Charlotte, North Carolina;
11
<PAGE>
"Eurodollar Loan" means a Loan that bears interest at rates based upon
---------------
the Adjusted Eurodollar Rate;
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest
---------------
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Eurodollar Business Days prior
to the first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Eurodollar Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
--------
however, if more than one rate is specified on Reuters Screen LIBO Page,
-------
the applicable rate shall be the arithmetic mean of all such rates (rounded
upwards, if necessary, to the nearest 1/100 of 1%);
"Event of Default" means any of the occurrences set forth as such in
----------------
Section 9.01 hereof;
------------
"Existing Letters of Credit" means (i) that certain standby letter of
--------------------------
credit number 919266 issued for the account of the Borrower on December 4,
1996 by NationsBank, N.A. (formerly known as NationsBank, N.A. (South)) for
the benefit of Frederick Atkins, Inc. in the stated amount of
$5,154,157.00; and (ii) that certain standby letter of credit number 917670
issued for the account of the Borrower on October 9, 1996 by NationsBank,
N.A. (formerly known as NationsBank, N.A. (South)) for the benefit of the
Associated Merchandising Corporation (AMC) and/or the Hong Kong and
Shanghai Banking Corporation Limited in the original stated amount of
$8,500,000.00;
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
--------
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate charged to the Agent (in its individual capacity)
on such day on such transactions as determined by the Agent;
"Filing Date" has the meaning assigned thereto in Section 5.01(a)(xiv)
----------- --------------------
hereof;
"Fiscal Year" means the 52-week or 53-week period of the Borrower
-----------
ending on the Saturday of each calendar year closest (whether before or
after) to January 31 and "Fiscal
12
<PAGE>
Year" followed by a numerical year means the Fiscal Year which has a Fiscal
Year Beginning occurring during such numerical calendar year;
"Fiscal Year Beginning" means the first day of a Fiscal Year;
---------------------
"Foreign Benefit Law" means any applicable statute, law, ordinance,
-------------------
code, rule, regulation, order or decree of any foreign nation or any
province, state, territory, protectorate or other political subdivision
thereof regulating, relating to, or imposing liability or standards of
conduct concerning, any pension, retirement, healthcare, death, disability
or other employee benefit plan;
"Foreign Subsidiary" means a Subsidiary not organized or existing
------------------
under the laws of the United States of America, any state thereof, or the
District of Columbia;
"Four-Quarter Period" means a period of four full consecutive fiscal
-------------------
quarterly periods, taken together as one accounting period, and in the
event any such fiscal quarterly period occurs prior to the effective date
of any Acquisition, or is the period in which such effective date occurs
(each a "Pre-Acquisition Period"), all financial statements, data,
computations and determinations for such Four-Quarter Period shall be made
on a pro forma basis for each Pre-Acquisition Period giving effect to such
Acquisition for all prior periods;
"GAAP" or "Generally Accepted Accounting Principles" means those
---- ----------------------------------------
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report, as such
principles are from time to time supplemented and amended, subject to
compliance at all times with Section 1.02 hereof;
------------
"Government Securities" means direct obligations of, or obligations
---------------------
the timely payment of principal and interest on which are fully and
unconditionally guaranteed by, the United States of America;
"Governmental Authority" means any Federal, state, municipal,
----------------------
national, foreign or other governmental department, commission, board,
bureau, agency, court, arbitration body or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative or judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether a state of
the United States, the United States or foreign nation, state, province or
other governmental instrumentality;
"Guarantor Joinder Agreement" means a Guarantor Joinder Agreement
---------------------------
substantially in the form of Exhibit E-1 attached hereto and incorporated
-----------
herein by reference (with blanks appropriately filled in) executed and
delivered to the Agent in connection with a Material Subsidiary (or other
Person) becoming a Guarantor and party to the Guaranty;
13
<PAGE>
"Guarantors" means, collectively, (i) each Material Subsidiary
----------
existing on the Closing Date and (ii) any other Person who shall become a
Material Subsidiary after the Closing Date and shall become a party to the
Guaranty as provided in Section 7.18 hereof; provided further, for purposes
------------ -------- -------
of Article VIII hereof, the term "Guarantor" shall be deemed to be
------------
"Subsidiary" at all times following the termination of the Guaranty in
accordance with Section 11.20 hereof;
-------------
"Guaranty" means the Guaranty Agreement of the Guarantors (including
--------
without limitation those Guarantors which subsequently become a party
thereto in accordance with Section 7.18 hereof) in favor of the Agent
------------
guaranteeing in whole or in part the payment of Obligations, substantially
in the form of Exhibit E attached hereto and incorporated herein by
---------
reference, as the same may be amended, modified or supplemented;
"Hazardous Material" means and includes any pollutant, contaminant, or
------------------
hazardous, toxic or dangerous waste, substance or material (including
without limitation petroleum products, asbestos-containing materials and
lead), the generation, handling, storage, transportation, disposal,
treatment, release, discharge or emission of which is subject to any
Environmental Law;
"Indebtedness" means with respect to any Person, without duplication,
------------
all Indebtedness for Money Borrowed, all indebtedness of such Person for
the acquisition of property, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness is assumed, all
liability of such Person by way of endorsements (other than for collection
or deposit in the ordinary course of business), all Contingent Obligations,
all Rate Hedging Obligations, that portion of obligations with respect to
Capital Leases which in accordance with Generally Accepted Accounting
Principles is classified as a liability on a balance sheet and all
Synthetic Lease Indebtedness; but excluding all accounts payable in the
ordinary course of business and only so long as payment therefor is due
within one year; provided, that in no event shall the term Indebtedness
--------
include surplus and retained earnings, minority interest in Subsidiaries,
lease obligations (other than pursuant to Capital Leases or in connection
with any tax retention operating lease or any form of synthetic lease as
provided above), reserves for deferred income taxes and investment credits,
other deferred credits and reserves, and deferred compensation obligations;
"Indebtedness for Money Borrowed" means for any Person all
-------------------------------
indebtedness in respect of money borrowed, including without limitation all
Capital Leases and the deferred purchase price of any property or asset,
evidenced by a promissory note, bond or similar written obligation for the
payment of money (including, but not limited to, conditional sales or
similar title retention agreements);
"Interest Period" for each Eurodollar Loan means a period commencing
---------------
on the date such Eurodollar Loan is made or Converted and each subsequent
period commencing on the last day of the immediately preceding Interest
Period for such Eurodollar Loan, and ending, at the Borrower's option, on
the date one, two, three or six months thereafter as notified to
14
<PAGE>
the Agent by an Authorized Representative three (3) Eurodollar Business
Days prior to the beginning of such Interest Period; provided, that,
--------
(i) if the Authorized Representative fails to notify the Agent of
the length of an Interest Period three (3) Eurodollar Business Days
prior to the first day of such Interest Period, the Loan for which
such Interest Period was to be determined shall be deemed to be a Base
Rate Loan;
(ii) if an Interest Period for a Eurodollar Loan would end on a
day which is not a Eurodollar Business Day such Interest Period shall
be extended to the next Eurodollar Business Day (unless such extension
would cause the applicable Interest Period to end in the succeeding
calendar month, in which case such Interest Period shall end on the
next preceding Eurodollar Business Day);
(iii) any Interest Period which begins on the last Eurodollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Eurodollar Business Day of a
calendar month;
(iv) no Interest Period shall extend past the Revolving Credit
Termination Date;
(v) on any day, with respect to all Revolving Credit Loans, there
shall be not more than ten (10) Interest Periods in effect;
"Investment Grade Rating" means the assignment of a rating of both
-----------------------
BBB- or higher by S&P and Baa3 or higher by Moody's to the Rated Debt
issued by the Borrower;
"Issuing Bank" means, as of the Closing Date, NationsBank, and
------------
thereafter any replacement or successor thereto which is then a Lender and
shall agree with the Borrower to succeed to and become vested with all the
rights, powers, discretions, privileges and duties of the Issuing Bank,
including without limitation as set forth in Article III; provided further,
----------- -------- -------
the term "Issuing Bank" means NationsBank with respect to the Existing
Letters of Credit.
"Junior Subordinated Debentures" means the 7.5% Junior Subordinated
------------------------------
Debentures Due March 31, 2004 of the Borrower issued in the original
aggregate principal amount of $17,500,000;
"LC Account Agreement" means the LC Account Agreement dated as of the
--------------------
date hereof between the Borrower and the Agent, as amended, modified or
supplemented from time to time;
"Letter of Credit" means any standby letter of credit issued by the
----------------
Issuing Bank for the account of the Borrower in favor of a Person advancing
credit or securing an obligation on behalf of the Borrower and shall
include the Existing Letters of Credit;
15
<PAGE>
"Letter of Credit Commitment" means with respect to each Lender, the
---------------------------
obligation of such Lender to acquire Participations up to an aggregate
stated amount at any one time outstanding equal to such Lender's Applicable
Commitment Percentage of the Total Letter of Credit Commitment as the same
may be increased or decreased from time to time pursuant to this Agreement;
"Letter of Credit Facility" means the facility described in Article
------------------------- -------
III hereof providing for the issuance by the Issuing Bank for the account
---
of the Borrower of Letters of Credit in an aggregate stated amount at any
time outstanding not exceeding the Total Letter of Credit Commitment;
"Level" has the meaning assigned to such term in the definition of
-----
"Applicable Interest Addition" in Section 1.01 hereof;
------------
"Lien" means any interest in property securing any obligation owed to,
----
or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but
not limited to the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes. For the
purposes of this Agreement, the Borrower and its Subsidiaries shall be
deemed to be the owners of any property which either of them have acquired
or hold subject to a conditional sale agreement, financing lease, or other
arrangement pursuant to which title to the property has been retained by or
vested in some other Person for security purposes;
"Loan" or "Loans" means any of the Revolving Credit Loans or Swing
---- -----
Line Loans;
"Loan Documents" means this Agreement, the Notes, the Guaranty,
--------------
Applications and Agreements for Letters of Credit, each Letter of Credit,
the LC Account Agreement, any Pledge Agreement and all other instruments
and documents heretofore or hereafter executed or delivered to and in favor
of any Lender or the Agent in connection with the Loans or the Letters of
Credit made, issued or created under this Agreement as the same may be
amended, modified or supplemented from time to time;
"Loan Parties" means, collectively, the Borrower and each of the
------------
Guarantors;
"Material Adverse Effect" means a material adverse effect on (i) the
-----------------------
business, business prospects, results of operations or condition (financial
or otherwise) of the Borrower and its Subsidiaries taken as a whole or (ii)
the ability of the Borrower or any Guarantor to observe and perform the
covenants and agreements contained herein or in any other Loan Document or
the ability of any Lender to receive the benefit of any remedy provided
thereto under any Loan Document;
"Material Subsidiary" means any direct or indirect Subsidiary of the
-------------------
Borrower, other than a Securitization Subsidiary, which (i) has total
assets equal to or greater than 5% of Consolidated Total Assets (calculated
as of the most recent fiscal period with respect to
16
<PAGE>
which the Agent shall have received financial statements required to be
delivered pursuant to Sections 7.01(a) or (b) (or if prior to delivery of
---------------- ---
any financial statements pursuant to such Sections, then calculated with
respect to the Combined Six Month Statements) (the "Required Financial
Information")) or (ii) has net income equal to or greater than 5% of
Consolidated Net Income (each calculated for the most recent period for
which the Agent has received the Required Financial Information); provided,
--------
however, that notwithstanding the foregoing, the term "Material
-------
Subsidiaries" shall mean Subsidiaries of the Borrower, other than
Securitization Subsidiaries, that together with the Borrower have assets
equal to not less than 95% of Consolidated Total Assets (calculated as
described above but excluding assets directly owned by Securitization
Subsidiaries) and net income of not less than 95% of Consolidated Net
Income (calculated as described above but excluding income directly earned
by Securitization Subsidiaries); provided further that if more than one
-------- -------
combination of Subsidiaries satisfies such threshold, then those
Subsidiaries so determined to be "Material Subsidiaries" shall be specified
by the Borrower;
"Moody's" means Moody's Investors Services, Inc.;
-------
"Multi-employer Plan" means an employee pension benefit plan covered
-------------------
by Title IV of ERISA and in respect of which the Borrower or any Subsidiary
is an "employer" as described in Section 4001(b) of ERISA, which is also a
multi-employer plan as defined in Section 4001(a)(3) of ERISA;
"Net Proceeds" from a disposition of assets (other than assets sold in
------------
the ordinary course of business and accounts receivable sold in connection
with an accounts receivable securitization transacted in the ordinary
course of business by a Securitization Subsidiary) or issuance of equity
means cash payments received therefrom as and when received, net of (i)
all reasonable legal, accounting, banking, underwriting, title and
recording expenses, commissions, discounts and other fees and expenses
incurred in connection therewith, (ii) all taxes required to be paid or
accrued as a consequence of such disposition or issuance and (iii) all
amounts necessary to repay Indebtedness for Borrowed Money the repayment of
which is secured by such disposed assets;
"NMS" means NationsBanc Montgomery Securities LLC, a Delaware limited
---
liability company;
"Notes" means, collectively, the Revolving Credit Notes and the Swing
-----
Line Note;
"Obligations" means the obligations, liabilities and Indebtedness of
-----------
the Borrower with respect to (i) the principal and interest on the Loans as
evidenced by the Notes, (ii) the Reimbursement Obligations, (iii) all
liabilities of Borrower to any Lender which arise under a Swap Agreement,
and (iv) the payment and performance of all other obligations, liabilities,
fees and Indebtedness of the Borrower to the Lenders or the Agent
hereunder, under any one or more of the other Loan Documents or with
respect to the Loans;
17
<PAGE>
"Outstandings" means, at any time of determination, the sum of the
------------
Revolving Credit Outstandings, Outstanding Letters of Credit and Swing Line
Outstandings;
"Outstanding Letters of Credit" means all undrawn amounts of Letters
-----------------------------
of Credit plus all Reimbursement Obligations then due and payable;
"Parisian Indenture" means that certain Amended and Restated Indenture
------------------
dated as of October 11, 1996 among the Borrower, Parisian, Inc. and AmSouth
Bank of Alabama (formerly known as AmSouth Bank, N.A.), trustee, as amended
from time to time thereafter;
"Parisian Senior Subordinated Notes" means the 9.875% Senior
----------------------------------
Subordinated Notes Due 2003 of Parisian, Inc. in the original aggregate
principal amount of $125,000,000 issued pursuant to the Parisian Indenture;
"Participation" means, with respect to any Lender (other than the
-------------
Swing Line Lender or Issuing Bank, as applicable), the extension of credit
represented by the participation of such Lender hereunder in the liability
of the Swing Line Lender in respect of a Swing Line Loan made or the
liability of the Issuing Bank in respect of a Letter of Credit issued in
accordance with the terms hereof;
"Permitted Acquisition" means an Acquisition beyond the normal course
---------------------
of business effected with the consent and approval of the board of
directors or other applicable governing body of the Person being acquired,
and with the duly obtained approval of such shareholders or other holders
of equity interest as such Person may be required to obtain, so long as (i)
immediately prior to and immediately after the consummation of such
Acquisition, no Default or Event of Default has occurred and is continuing,
(ii) substantially all of the sales and operating profits generated by such
Person (or assets) so acquired or invested are derived from the same or
related line or lines of business as then conducted by the Borrower and its
Subsidiaries and (iii) if the Cost of Acquisition therefor equals or
exceeds $100,000,000, pro forma historical financial statements as of the
end of the most recently completed Four-Quarter Period giving effect to
such Acquisition are delivered to the Agent not less than five (5) Business
Days prior to the consummation of such Acquisition, together with a
certificate of an Authorized Representative demonstrating compliance with
the financial covenants set forth in Article VIII hereof after giving
------------
effect to such Acquisition;
"Person" means an individual, partnership, limited partnership,
------
corporation, limited liability company, limited liability partnership,
trust, unincorporated organization, association, joint venture or a
government or agency or political subdivision thereof;
"Pledge Agreement", "Pledged Stock" and "Pledgor" each has the meaning
---------------- ------------- -------
assigned thereto in Section 7.18(b)(i) hereof;
------------------
"Pre-Refunded Municipal Obligations" means obligations of any state of
----------------------------------
the United States of America or of any municipal corporation or other
public body organized under the laws of any such state which are rated,
based on the escrow, in the highest investment rating
18
<PAGE>
category by both S&P and Moody's and which have been irrevocably called for
redemption and advance refunded through the deposit in escrow of Government
Securities or other debt securities which are (i) not callable at the
-----
option of the issuer thereof prior to maturity, (ii) irrevocably pledged
solely to the payment of all principal and interest on such obligations as
the same becomes due and (iii) in a principal amount and bear such rate or
rates of interest as shall be sufficient to pay in full all principal of,
interest, and premium, if any, on such obligations as the same becomes due
as verified by a nationally recognized firm of certified public
accountants;
"Prime Rate" means the per annum rate of interest established from
----------
time to time by NationsBank as its prime rate, which rate may not be the
lowest rate of interest charged by NationsBank to its customers;
"Principal Office" means the office of the Agent at NationsBank, N.A.,
----------------
presently located at Independence Center, 101 N. Tryon Street, 15th Floor,
NC1-001-15-04, Charlotte, North Carolina, 28255 Attention: Mr. Ken
Deffendall, Agency Services, or such other office and address as the Agent
may from time to time designate;
"Rated Debt" has the meaning assigned to such term in the definition
----------
of "Applicable Interest Addition" in Section 1.01 hereof;
------------
"Rate Hedging Obligations" means any and all obligations of the
------------------------
Borrower or any Subsidiary, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor),
under (a) any and all agreements, devices or arrangements designed to
protect at least one of the parties thereto from the fluctuations of
interest rates, exchange rates or forward rates applicable to such party's
assets, liabilities or exchange transactions, including, but not limited
to, Dollar-denominated or cross-currency interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options,
puts, warrants and those commonly known as interest rate "swap" agreements;
and (b) any and all cancellations, buybacks, reversals, terminations or
assignments of any of the foregoing;
"Regulation D" means Regulation D of the Board as the same may be
------------
amended or supplemented from time to time;
"Registration Statement" has the meaning assigned thereto in Section
---------------------- -------
5.01(a)(xiv) hereof;
------------
"Reimbursement Obligation" means at any time, the obligation of the
------------------------
Borrower with respect to any Letter of Credit to reimburse the Issuing Bank
for amounts theretofore paid by the Issuing Bank pursuant to a drawing
under such Letter of Credit;
19
<PAGE>
"Repurchase Agreement" means a repurchase agreement entered into with
--------------------
(i) any financial institution whose debt obligations or commercial paper
are rated "A" or "A2" by either of S&P or Moody's or "A-1" by S&P or "P-1"
by Moody's, or (ii) any Lender;
"Required Financial Information" has the meaning assigned to such term
------------------------------
in the definition of "Material Subsidiary" in Section 1.01 hereof;
------------
"Required Lenders" means, as of any date, Lenders on such date having
----------------
Credit Exposures (as defined below) aggregating more than 50% of the
aggregate Credit Exposures of all the Lenders on such date. For purposes
of the preceding sentence, the amount of the "Credit Exposure" of each
---------------
Lender shall be equal at all times (i) other than following the occurrence
and during the continuance of an Event of Default, to its Revolving Credit
Commitment, and (ii) following the occurrence and during the continuance of
an Event of Default, to the aggregate principal amount of Revolving Credit
Loans owing to such Lender plus the amount of such Lender's Applicable
----
Commitment Percentage of Swing Line Outstandings and Outstanding Letters of
Credit; provided, if any Lender shall have failed to pay to the Swing Line
--------
Lender or the Issuing Bank, as applicable, such Lender's Applicable
Commitment Percentage of any Swing Line Loan or drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation, such Lender's
Credit Exposure attributable to such Swing Line Outstandings or Outstanding
Letters of Credit or both shall be deemed to be held by the Swing Line
Lender or the Issuing Bank, as applicable, for purposes of this definition;
"Reserve Requirement" means, at any time, the maximum rate at which
-------------------
reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board (or any successor) by
member banks of the Federal Reserve System against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting the
effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by such member banks with respect to (i)
any category of liabilities which includes deposits by reference to which
the Adjusted Eurodollar Rate is to be determined, or (ii) any category of
extensions of credit or other assets which include Eurodollar Loans. The
Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement;
"Revolving Credit Commitment" means with respect to each Lender, the
---------------------------
obligation of such Lender to make Revolving Credit Loans to the Borrower up
to an aggregate principal amount at any one time outstanding equal to the
amount set forth opposite such Lender's name on Exhibit A hereto as the
---------
same may be increased or decreased from time to time pursuant to this
Agreement;
"Revolving Credit Facility" means the facility described in Section
------------------------- -------
2.01 hereof providing for Loans to the Borrower by the Lenders in the
----
aggregate principal amount equal to (i) the Total Revolving Credit
Commitment, minus (ii) the aggregate principal amount of Swing Line
-----
Outstandings and Outstanding Letters of Credit;
20
<PAGE>
"Revolving Credit Loan" means a Loan made pursuant to the Revolving
---------------------
Credit Facility (but specifically excludes all Swing Line Loans);
"Revolving Credit Notes" means, collectively, the promissory notes of
----------------------
the Borrower evidencing Revolving Credit Loans executed and delivered to
the Lenders as provided in Section 2.07(a) hereof substantially in the form
---------------
attached hereto as Exhibit F and incorporated herein by reference, with
---------
appropriate insertions as to amounts, dates and names of Lenders, as the
same shall be amended, modified or supplemented and in effect from time to
time;
"Revolving Credit Outstandings" means, as of any date of
-----------------------------
determination, the aggregate principal amount of all Revolving Credit Loans
then outstanding;
"Revolving Credit Termination Date" means (i) February 2, 2003 or (ii)
---------------------------------
such earlier date of termination of Lenders' obligations pursuant to
Section 9.01 upon the occurrence of an Event of Default, or (iii) such date
------------
as the Borrower may voluntarily and permanently terminate the Revolving
Credit Facility by payment in full of all Obligations (including the
discharge of all Obligations of the Swing Line Lender, the Issuing Bank
and the Lenders with respect to Letters of Credit and Participations);
"S&P" means Standard & Poor's Rating Group, a division of McGraw-Hill
---
Companies, Inc.;
"Securitization Subsidiary" means Younkers Credit Corporation,
-------------------------
Proffitt's Credit Corporation, National Bank of the Great Lakes and any
other present or future Subsidiary (including any credit card bank) of the
Borrower that is, directly or indirectly, wholly owned by the Borrower and
organized for the purpose of and is only engaged in (i) originating,
purchasing, financing, servicing and collecting accounts receivable
obligations of customers of the Borrower or its Subsidiaries, (ii) issuing
and servicing credit cards, engaging in other credit card operations and
financing accounts receivable obligations of customers of the Borrower and
its Subsidiaries, (iii) the sale or financing of such accounts receivable
and interests therein and (iv) other activities incident thereto;
"Senior Indenture" means that certain Indenture dated as of May 21,
----------------
1997 among the Borrower and The First National Bank of Chicago, as trustee,
as amended from time to time thereafter;
"Senior Notes" means the 8.125% Senior Notes due 2004 of the Borrower
------------
in the aggregate principal amount of $125,000,000 issued pursuant to the
Senior Indenture;
"Single Employer Plan" means any employee pension benefit plan covered
--------------------
by Title IV of ERISA and in respect of which the Borrower or any Subsidiary
is an "employer" as described in Section 4001(b) of ERISA, which is not a
Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at the
-------
time of determination:
21
<PAGE>
(i) the fair value of its assets (both at fair valuation and at
present fair saleable value on an orderly basis) is in excess of the
total amount of its liabilities, including, without limitation,
Contingent Obligations; and
(ii) it is then able and expects to be able to pay its debts as
they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Stated Termination Date" means February 2, 2003;
------------------------
"Subsidiary" means any corporation or other entity in which more than
----------
50% of its outstanding voting stock or more than 50% of all equity
interests is owned directly or indirectly by the Borrower and/or by one or
more of the Borrower's Subsidiaries at or after the Closing Date, and
specifically includes Carson and each of its subsidiaries as of the Closing
Date; notwithstanding the foregoing, the reference to "Subsidiary" or
"Subsidiaries" in Sections 6.01(f)(iii), (g), (k), (l), (m), (o), or (r),
------------------------------------------------------
Section 7.01(d), Section 7.09 (as applicable to Sections 7.02 and 7.05) and
--------------- ------------ ----------------------
Sections 7.12, 7.13, 7.18, 8.04, 8.05, 8.06, 8.07 (other than 8.07 (viii)),
---------------------------------------------------------------------------
8.08, 8.09, 8.12 and 11.20 and in the introductory paragraph of Article
-------------------------- -------
VIII to the extent relating to any of the Sections of such Article referred
----
to above does not include any Securitization Subsidiary;
"Swap Agreement" means one or more agreements between the Borrower and
--------------
another Person, on terms mutually acceptable to the Borrower and such
Person, which agreements create Rate Hedging Obligations;
"Swing Line" means the revolving line of credit established by the
----------
Swing Line Lender in favor of the Borrower pursuant to Section 2.02;
------------
"Swing Line Lender" means, as of the Closing Date, NationsBank, and
-----------------
thereafter any replacement or successor thereto which is then a Lender and
shall agree with the Borrower to succeed to and become vested with all the
rights, powers, discretions, privileges and duties of the Swing Line
Lender, including without limitation as set forth in Section 2.02 hereof.
------------
"Swing Line Loans" means Loans made by the Swing Line Lender to the
----------------
Borrower pursuant to Section 2.02;
------------
"Swing Line Note" means the promissory note of the Borrower evidencing
---------------
Swing Line Loans executed and delivered to the Swing Line Lender
substantially in the form attached hereto as Exhibit G and incorporated
---------
herein by reference, as the same shall be amended, modified or supplemented
and in effect from time to time;
"Swing Line Outstandings" means, as of any date of determination, the
-----------------------
aggregate principal amount of all Swing Line Loans then outstanding;
22
<PAGE>
"Swing Line Termination Date" has the meaning assigned to such term in
---------------------------
Section 2.02(g) hereof;
---------------
"Synthetic Lease Indebtedness" means, with respect to a Person that is
----------------------------
a lessee under a synthetic lease, an amount equal to (i) the aggregate
purchase price of any property that the lessor under such synthetic lease
acquired, through one or a series of related transactions, and thereafter
leased to such Person pursuant to such synthetic lease less (ii) the
----
aggregate amount of all payments of fixed rent or other rent payments which
reduce such Person's obligation under such synthetic lease and which are
not the financial equivalent of interest. Synthetic Lease Indebtedness of a
Person shall also include, without duplication, the amount of Synthetic
Lease Indebtedness of others to the extent guarantied by such Person;
"Total Letter of Credit Commitment" means an amount equal to
---------------------------------
$100,000,000;
"Total Revolving Credit Commitment" means an amount equal to
---------------------------------
$600,000,000, as reduced from time to time in accordance with Section 2.09;
------------
the Total Letter of Credit Commitment and the Total Swing Line Commitment
are included within, and are not in addition to, the Total Revolving Credit
Commitment;
"Total Swing Line Commitment" means an amount equal to $50,000,000;
---------------------------
"Type" means any type of Loan (i.e., a Base Rate Loan or Eurodollar
----
Loan); and
"wholly owned" means, when used with respect to a Subsidiary of the
------------
Borrower, that all of the outstanding capital stock (excluding director
qualifying shares) or other comparable equity interest of such Subsidiary
are owned directly or indirectly by the Borrower.
1.02 ACCOUNTING TERMS. All accounting terms not specifically defined
----------------
herein shall have the meanings assigned to such terms and shall be interpreted
in accordance with Generally Accepted Accounting Principles as in effect on the
date of the audited financial statements of the Borrower to be delivered to the
Agent and each Lender for the Borrower's Fiscal Year ended January 31, 1998,
which shall be the same in all material respects as those accounting principles
applied in the preparation of the Combined Six Month Statements, and applied on
a Consistent Basis.
1.03 TERMS CONSISTENT. All of the terms defined in this Agreement shall
----------------
have such defined meanings when used in any of the Loan Documents unless the
context shall require otherwise. All references to the Borrower, the Agent and
any Lender shall be deemed to include any successor or permitted assignee of any
thereof. All plural references and definitions shall have a corresponding
meaning in the singular, and all singular references and definitions shall have
a corresponding meaning in the plural.
23
<PAGE>
ARTICLE II
THE LOANS
---------
2.01 REVOLVING CREDIT LOANS.
----------------------
(a) COMMITMENT. Subject to the terms and conditions of this Agreement,
----------
each Lender severally agrees to make Revolving Credit Loans to the Borrower,
from time to time on a pro rata basis as to the total borrowing requested by the
Borrower on any day determined by its Applicable Commitment Percentage of the
Total Revolving Credit Commitment up to but not exceeding the Revolving Credit
Commitment of such Lender; provided, however, that the Lenders will not be
-------- -------
required and shall have no obligation to make any Revolving Credit Loans (i) so
long as a Default or an Event of Default has occurred and is continuing or (ii)
if the maturity of the Revolving Credit Notes has been accelerated as a result
of an Event of Default. Within such limits, the Borrower may borrow, repay and
reborrow hereunder, on a Business Day in the case of a Base Rate Loan and on a
Eurodollar Business Day in the case of a Eurodollar Loan, from the Closing Date
until, but (as to borrowings and reborrowings) not including, the Revolving
Credit Termination Date;
(b) AMOUNTS. The aggregate unpaid principal amount of the Outstandings
-------
shall not exceed at any time an amount equal to the Total Revolving Credit
Commitment. Each Revolving Credit Loan made, Converted or Continued, unless
made in accordance with Sections 2.01(c)(iv), 2.02(e) or 3.02(c) hereof, shall
----------------------------------------
be in a principal amount of at least $5,000,000 (or the remaining Total
Revolving Credit Commitment, if less), and, if greater than $5,000,000, an
integral multiple of $1,000,000.
(c) LOANS AND RATE SELECTION.
------------------------
(i) An Authorized Representative shall give the Agent (1) at
least three (3) Eurodollar Business Days' irrevocable telephonic notice
of each Eurodollar Loan (whether representing an additional borrowing
hereunder or the Conversion of borrowing hereunder from Base Rate Loans
to Eurodollar Loans or the Continuation of borrowing hereunder of
Eurodollar Loans) prior to 11:30 A.M., Charlotte, North Carolina time;
and (2) irrevocable telephonic notice of each Base Rate Loan
representing an additional borrowing hereunder or the Conversion of
borrowing hereunder from Eurodollar Loans to Base Rate Loans prior to
11:30 A.M. Charlotte, North Carolina time on the day of such proposed
Base Rate Loan. Each such notice shall specify the amount of the
Revolving Credit Loan, the Type of Revolving Credit Loan, the date of
the Revolving Credit Loan and, if a Eurodollar Loan, the Interest Period
to be used in the computation of interest. The Authorized Representative
shall provide the Agent written confirmation of each such telephonic
notice on the same day by telefacsimile transmission in the form of a
Borrowing Notice, for additional Revolving Credit Loans, or in the form
attached hereto as Exhibit H and incorporated herein by reference as to
---------
selection or Conversion of interest rates as to outstanding Revolving
Credit Loans, in each case with appropriate insertions, but failure to
provide such confirmation shall not affect the validity of such
telephonic notice. The duration of the initial Interest Period for each
Revolving Credit Loan that is a Eurodollar Loan shall be as specified in
the initial Borrowing
24
<PAGE>
Notice. The Borrower shall have the option to elect the duration of
subsequent Interest Periods and to Convert the Revolving Credit Loans in
accordance with Section 2.10 hereof. If the Agent does not receive a
------------
notice of election of duration of an Interest Period or to Convert by
the time prescribed hereby and by Section 2.10 hereof, the Borrower
------------
shall be deemed to have elected to Convert such Revolving Credit Loan to
(or Continue such Revolving Credit Loan as) a Base Rate Loan until the
Borrower notifies the Agent in accordance herewith and with Section
-------
2.10.
-----
(ii) Notice of receipt of each Borrowing Notice shall be provided
by the Agent to each Lender with reasonable promptness, but not later
than 1:00 P.M. Charlotte, North Carolina time on the same day as Agent's
receipt of such notice. The Agent shall provide each Lender written
confirmation of such telephonic confirmation by telefacsimile
transmission but failure to provide such notice shall not affect the
validity of such telephonic notice.
(iii) Not later than 3:00 P.M., Charlotte, North Carolina time on
the date specified for each Revolving Credit Loan, each Lender shall,
pursuant to the terms and subject to the conditions of this Agreement,
make the amount of the Revolving Credit Loan or Revolving Credit Loans
to be made by it on such day available to the Agent, by depositing or
transferring the proceeds thereof in immediately available funds at the
Principal Office. The amount so received by the Agent shall, subject to
the terms and conditions of this Agreement, be made available to the
Borrower not later than 3:30 P.M., Charlotte, North Carolina time by
delivery of the proceeds thereof to the Borrower's Account or otherwise
as shall be directed in the applicable Borrowing Notice by the
Authorized Representative.
(iv) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit prior to the Revolving Credit Termination Date, then
notice of such drawing shall be provided promptly by the Issuing Bank to
the Agent and the drawing shall be paid by the Agent without the
requirement of notice from the Borrower from immediately available funds
which shall be advanced by the Swing Line Lender under the Swing Line
(provided that a Swing Line Loan shall then be available). If a drawing
is presented under any Letter of Credit in accordance with the terms
thereof and if a Swing Line Loan in the amount of such drawing shall not
be available and Borrower shall not immediately reimburse the Issuing
Bank for the amount of such drawing or payment upon demand, then notice
of such drawing or payment shall be provided promptly by the Issuing
Bank to the Agent and the Agent shall provide notice to each Lender by
telephone. If notice to the Lenders of a drawing under any Letter of
Credit is given by the Agent at or before 1:00 P.M. Charlotte, North
Carolina time on any Business Day, the Borrower shall be deemed to have
requested, and each Lender shall, pursuant to the conditions of this
Agreement, make a Base Rate Loan under the Revolving Credit Facility in
the amount of such Lender's Applicable Commitment Percentage of such
drawing or payment and shall pay such amount to the Agent for the
account of the Issuing Bank at the Principal Office in Dollars and in
immediately available funds before 3:00 P.M. Charlotte, North Carolina
time on the same Business Day. If notice to the Lenders is given by the
Agent after 1:00 P.M. Charlotte, North Carolina time on any Business
Day, the Borrower shall be deemed to have requested, and each Lender
shall, pursuant to the terms
25
<PAGE>
and subject to the conditions of this Agreement, make a Base Rate Loan
under the Revolving Credit Facility in the amount of such Lender's
Applicable Commitment Percentage of such drawing or payment and shall
pay such amount to the Agent for the account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds before
1:00 P.M. Charlotte, North Carolina time on the next following Business
Day. Such Base Rate Loan shall continue unless and until the Borrower
Converts such Base Rate Loan in accordance with the terms of Section
-------
2.10 hereof.
----
2.02 SWING LINE. Notwithstanding any other provision of this Agreement
----------
to the contrary, in order to administer the Revolving Credit Facility in an
efficient manner and to minimize the transfer of funds between the Agent and the
Lenders, the Swing Line Lender shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. Each provision of
Section 2.01(c) hereof applicable to Base Rate Loans shall be applicable in all
- ---------------
respects to each Swing Line Loan.
(a) The Swing Line Lender shall not make any Swing Line Loan pursuant
hereto (i) if the Borrower is not in compliance with all the conditions to the
making of Revolving Credit Loans set forth in this Agreement, (ii) if after
giving effect to such Swing Line Loan, the Swing Line Outstandings exceed the
Total Swing Line Commitment, or (iii) if after giving effect to such Swing Line
Loan, the sum of all Outstandings exceeds the Total Revolving Credit Commitment.
(b) All Swing Line Loans shall bear interest at the rate agreed to
between the Borrower and the Swing Line Lender (provided that in the absence of
any agreed upon interest rate for a Swing Line Loan, such Swing Line Loan shall
bear interest at the Base Rate) and, unless made in accordance with Sections
--------
2.01(c)(iv), 2.02(e) or 3.02(c), shall be in the minimum principal amount of
- -------------------------------
$1,000,000 (or the remaining Total Swing Line Commitment, if less) and any
increment of $100,000 in excess thereof.
(c) The principal amount of each Swing Line Loan shall be payable on
the earlier to occur of (i) the repayment thereof with a Revolving Credit Loan
pursuant to Section 2.02(e) below and (ii) the Swing Line Termination Date.
---------------
(d) The Borrower and each Lender acknowledge that all Swing Line Loans
are to be made solely by the Swing Line Lender to the Borrower but that such
Lender shall share the risk of loss with respect to such Swing Line Loans by
making a Revolving Credit Loan under the Revolving Credit Facility to repay such
Swing Line Loan in an amount equal to such Lender's Applicable Commitment
Percentage of such Swing Line Loan. The obligation of each Lender to so pay its
ratable share of the principal amount of outstanding Swing Line Loans by making
such Revolving Credit Loans under the Revolving Credit Facility up to but not
exceeding the Revolving Credit Commitment of such Lender shall be absolute and
unconditional and shall be made without counterclaim, deduction or set-off by
such Lender. Without limiting the generality of the foregoing, each Lender's
obligation to pay its ratable share of the principal amount of all outstanding
Swing Line Loans by making such Revolving Credit Loans as set forth above in
this Section 2.02(d) shall not be affected by:
----------------
26
<PAGE>
(i) any failure or inability of the Borrower to satisfy the
applicable conditions to borrowing set forth in Section 5.02,
------------
(ii) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents, or
(iii) the occurrence of any Default or Event of Default.
(e) The Swing Line Lender may, at any time, in its sole discretion, by
written notice to the Borrower, the Agent and the Lenders, demand repayment of
its Swing Line Loans. Any such demand for repayment of the Swing Line Loans,
and the occurrence of the Swing Line Termination Date, shall be deemed to
constitute a Borrowing Notice pursuant to Section 2.01(c)(i) and (ii), effective
---------------------------
on the date of such demand or occurrence, respectively, with respect to a Base
Rate Loan advanced under the Revolving Credit Facility on the date of such
Borrowing Notice in the aggregate principal amount of all outstanding Swing Line
Loans. Each Lender shall pay to the Agent, for the account of the Swing Line
Lender, an amount of such Base Rate Loan equal to its Applicable Commitment
Percentage (determined before giving effect to any termination of the Revolving
Credit Commitments pursuant to Section 9.01) in the manner described in Section
------------ -------
2.01(c)(iii).
- ------------
(f) The Agent shall upon the receipt of a Revolving Credit Loan
pursuant to Section 2.02(e) in an amount sufficient to repay any or all Swing
--------------
Line Loan(s) then outstanding, provide to the Swing Line Lender the amount
necessary to repay such Swing Line Loan(s) (which the Swing Line Lender shall
then apply to such repayment) and credit any balance of the Revolving Credit
Loan in immediately available funds to the Borrower's Account.
(g) The Swing Line shall continue in effect until the earlier of (i)
the Revolving Credit Termination Date or (ii) notification by the Swing Line
Lender as to the termination of the Swing Line, which notice may be given by the
Swing Line Lender in its sole discretion at any time, and the absence of any
successor Swing Line Lender within ten (10) Business Days after the notice of
such termination is given (the "Swing Line Termination Date"); provided further,
----------------
the Swing Line Lender shall be under no obligation to make Swing Line Loans at
any time, including without limitation during such ten (10) Business Day period.
2.03 PAYMENT OF INTEREST. (a) The Borrower shall pay interest to the
-------------------
Agent at the Principal Office (i) for the account of each Lender in the case of
each Revolving Credit Loan, on the outstanding and unpaid principal amount of
each Revolving Credit Loan made by such Lender for the period commencing on the
date of such Revolving Credit Loan until such Revolving Credit Loan shall be due
at the Adjusted Eurodollar Rate or the Base Rate, as elected or deemed elected
by the Borrower or otherwise applicable to such Revolving Credit Loan as herein
provided, and (ii) for the account of the Swing Line Lender in the case of each
Swing Line Loan, on the outstanding and unpaid principal amount of each Swing
Line Loan made by the Swing Line Lender for the period commencing on the date of
such Swing Line Loan until such Swing Line Loan is paid in full by the Borrower
or with a Revolving Credit Loan pursuant to Section 2.02(e) at the rate per
---------------
annum as determined pursuant to Section 2.02(b); provided, however, that if any
--------------- -------- -------
amount shall not be paid when due (at maturity, by acceleration or otherwise),
all amounts outstanding hereunder shall bear interest
27
<PAGE>
thereafter (i) in the case of a Eurodollar Loan, at a rate of interest per annum
which shall be two percent (2%) above the Adjusted Eurodollar Rate for such
Eurodollar Loan until the end of the Interest Period during which such payment
was due, and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, and (ii) in the case of a Base Rate Loan or a
Swing Line Loan, at a rate of interest per annum which shall be two percent (2%)
above the Base Rate, or (in each case) the maximum rate permitted by applicable
law, whichever is lower, from the date such amount was due and payable until the
date such amount is paid in full; provided further, it is expressly agreed that
-------- -------
the imposition of an additional rate of interest on amounts not paid when due as
provided in this Section 2.03 shall not constitute a penalty or forfeiture.
------------
(b) Interest on the outstanding principal balance of each Loan shall be
computed on the basis of a year of 360 days and calculated for the actual number
of days elapsed. Interest on each Loan shall be paid (i) quarterly in arrears
on the last Business Day of each January, April, July and October commencing
April 30, 1998, on each Base Rate Loan and each Swing Line Loan, (ii) on the
last day of the applicable Interest Period for each Eurodollar Loan and, for any
Eurodollar Loan having an Interest Period of six months, also on the last day of
the third month of such Interest Period, and (iii) upon payment or prepayment in
full of the principal amount of such Loan (or the date such payment or
prepayment is due if earlier).
2.04 PAYMENT OF PRINCIPAL. All Revolving Credit Outstandings and all
--------------------
Swing Line Outstandings shall be due and payable to the Agent for the benefit of
each Lender (or the Swing Line Lender in the case of Swing Line Outstandings) in
full on the Revolving Credit Termination Date, or earlier as herein expressly
provided. The principal amount of any Loan may be prepaid in whole or in part
at any time without penalty; provided, however, in connection with the
-------- -------
prepayment of a Eurodollar Loan, the Borrower shall pay to the Agent for the
account of the applicable Lenders the amount, if any, required under Section
-------
4.05 hereof. In the event that at any time Outstandings exceed the Total
- ----
Revolving Credit Commitment, the Borrower shall promptly repay upon the Agent's
demand an amount of the Revolving Credit Outstandings equal to or greater than
such excess. All prepayments made by the Borrower shall be in the amount of
$5,000,000 or such greater amount which is an integral multiple of $1,000,000
(or with respect to Swing Line Loans, in the amount of $1,000,000 or such
greater amount which is an integral multiple of $100,000), or such other amount
as necessary to comply with this Section 2.04 or with Section 2.09, together
------------ -------------
with accrued and unpaid interest on the amounts paid.
2.05 PAYMENTS; NON-CONFORMING PAYMENTS. (a) Each payment of principal
---------------------------------
(including any prepayment), interest and other amounts to be made by the
Borrower under this Agreement and other Loan Documents shall be made to the
Agent at the Principal Office, for the account of each Lender's Applicable
Lending Office, in Dollars and in immediately available funds, without setoff,
deduction or counterclaim, before 1:30 P.M. Charlotte, North Carolina time on
the date such payment is due. With respect to Swing Line Loans, each payment of
principal and payment of interest shall be made to the Agent, for the account of
the Swing Line Lender's Applicable Lending Office, at the Principal Office in
Dollars and in immediately available funds before 1:30 P.M. Charlotte, North
Carolina, time on the date such payment is due. The Borrower shall give the
Agent prior telephonic notice of any payment of principal, such notice to be
given by not later than 11:30 A.M. Charlotte, North Carolina time, on the date
of such payment.
28
<PAGE>
(b) The Agent shall deem any payment by or on behalf of the Borrower
hereunder that is not made both (i) in Dollars and in immediately available
funds and (ii) prior to 1:30 P.M. Charlotte, North Carolina time on the date
payment is due to be a non-conforming payment. Any such payment shall not be
deemed to be received by the Agent until the time such funds become available
funds. Any non-conforming payment shall constitute a Default or Event of
Default. The Agent shall give prompt notice to the Authorized Representative
and each of the Lenders (confirmed in writing) if any payment is non-conforming.
Interest shall continue to accrue on any principal as to which a non-conforming
payment is made until such funds become available funds (but in no event less
than the period from the date of such payment to the next succeeding Business
Day) at the respective rates of interest per annum specified in Section 2.03(a)
---------------
in respect of late payments of interest, from the date such amount was due and
payable until the date such amount is paid in full.
(c) In the event that any payment hereunder or under the Notes becomes
due and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day unless provided otherwise under
clause (ii) under the definition of "Interest Period"; provided, that interest
--------
shall continue to accrue during the period of any such extension.
2.06 BORROWER'S ACCOUNT. The Borrower shall continuously maintain the
------------------
Borrower's Account for the purposes herein contemplated.
2.07 NOTES. (a) Revolving Credit Loans made by each Lender shall be
-----
evidenced by, and be repayable with interest in accordance with the terms of,
the Revolving Credit Note payable to the order of such Lender in the amount of
its Revolving Credit Commitment, which Revolving Credit Note shall be dated the
Closing Date or such later date pursuant to an Assignment and Acceptance and
shall be duly completed, executed and delivered by the Borrower.
(b) Swing Line Loans made by the Swing Line Lender shall be evidenced
by, and be repayable with interest in accordance with the terms of, the Swing
Line Note dated the Closing Date and duly executed and delivered by the
Borrower.
2.08 PRO RATA PAYMENTS. Except as otherwise provided herein, (a) each
-----------------
payment and prepayment on account of the principal of and interest on the
Revolving Credit Loans and the fees described in Section 2.11 hereof shall be
------------
made to the Agent in the aggregate amount payable to the Lenders for the account
of the Lenders pro rata based on their Applicable Commitment Percentages, (b)
all payments to be made by the Borrower for the account of each of the Lenders
on account of principal, interest and fees, shall be made without set-off or
counterclaim, and (c) the Agent will promptly distribute such payments received
to the Lenders as provided for herein.
2.09 REDUCTIONS. The Borrower shall, by notice from an Authorized
----------
Representative, have the right from time to time (but not more frequently than
once during each calendar quarter upon not less than five (5) Business Days
written notice to the Agent) to reduce the Total Revolving Credit Commitment.
The Agent shall give each Lender, within one (1) Business Day, telephonic notice
(confirmed in writing) of such reduction. Each such reduction shall be in the
amount of $10,000,000 or such greater amount which is in an integral multiple of
$5,000,000, and shall permanently reduce the Total Revolving Credit Commitment
and the Revolving Credit Commitment of each Lender pro
29
<PAGE>
rata. Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the principal amount of the Revolving Credit
Outstandings to the extent that the Outstandings exceed the Total Revolving
Credit Commitment after giving effect to such reduction, together with amounts
required under Section 2.04.
------------
2.10 CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. The
--------------------------------------------------------
Borrower may:
(a) upon notice to the Agent on or before 11:30 A.M. Charlotte, North
Carolina time on any Business Day Convert all or a part of Eurodollar Loans to
Base Rate Loans on the last day of the Interest Period for such Eurodollar
Loans; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing and subject to the limitations set forth below and in Sections
--------
4.01, 4.02 and 4.03 hereof, on three (3) Eurodollar Business Days' notice to the
- -------------------
Agent on or before 11:30 A.M. Charlotte, North Carolina time:
(i) Continue Eurodollar Loans and elect a subsequent Interest
Period for all or a portion of Eurodollar Loans to begin on the last day
of the current Interest Period for such Eurodollar Loans; or
(ii) Convert Base Rate Loans (other than Swing Line Loans) to
Eurodollar Loans on any Eurodollar Business Day.
Notice of any such Continuation or Conversion shall specify the
effective date of such Continuation or Conversion and, with respect to
Eurodollar Loans, the Interest Period to be applicable to the Loan as Continued
or Converted. Each Continuation and Conversion pursuant to this Section 2.10
------------
shall be subject to the limitations on Eurodollar Loans set forth in the
definition of "Interest Period" herein and in Sections 2.01(a), (b) and (c) and
-----------------------------
Article IV hereof. All such Continuations or Conversions of Loans shall be
- ----------
effected pro rata based on the Applicable Commitment Percentages of the Lenders.
2.11 UNUSED FEE. For the period beginning on the Closing Date and
----------
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages of the Revolving Credit Facility, the Applicable Unused
Fee payable quarterly in arrears on the sum of the daily amount by which the
Total Revolving Credit Commitment exceeds the sum of the average daily (i)
Revolving Credit Outstandings and (ii) Outstanding Letters of Credit. The Swing
Line Outstandings shall not be outstanding Loans for purposes of determining
such fee. Such payments of fees provided for in this Section 2.11 shall be due
------------
in arrears on the last Business Day of each January, April, July and October
beginning April 30, 1998 to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make available any
portion of its Revolving Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee until such
Lender shall make available such portion. Such fee shall be calculated on the
basis of a year of 360 days for the actual number of days elapsed.
30
<PAGE>
2.12 DEFICIENCY LOANS. No Lender shall be responsible for any default of
----------------
any other Lender in respect to such other Lender's obligation to make any Loan
hereunder nor shall the Revolving Credit Commitment of any Lender hereunder be
increased as a result of such default of any other Lender. Without limiting the
generality of the foregoing, in the event any Lender shall fail to advance funds
to the Borrower as herein provided, the Agent may in its discretion, but shall
not be obligated to, advance under the applicable Note in its favor as a Lender
all or any portion of such amount or amounts (each, a "deficiency advance") and
shall thereafter be entitled to payments of principal of and interest on such
deficiency advance in the same manner and at the same interest rate or rates to
which such other Lender would have been entitled had it made such advance under
its applicable Note; provided, that upon payment to the Agent from such other
--------
Lender of the entire outstanding amount of each such deficiency advance,
together with accrued and unpaid interest thereon, from the most recent date or
dates interest was paid to the Agent by the Borrower on each Loan comprising the
deficiency advance at the interest rate per annum for overnight borrowing by the
Agent from the Federal Reserve Bank, then such payment shall be credited against
the applicable Note of the Agent in full payment of such deficiency advance and
the Borrower shall be deemed to have borrowed the amount of such deficiency
advance from such other Lender as of the most recent date or dates, as the case
may be, upon which any payments of interest were made by the Borrower thereon.
2.13 USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
---------------
Revolving Credit Facility and the Swing Line hereunder shall be used by the
Borrower to repay all loans outstanding and unpaid interest accrued thereon
under the Existing Credit Agreement, to provide working capital, to finance
capital expenditures, to finance Permitted Acquisitions and to provide for the
general corporate purposes of the Borrower. None of such proceeds will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
stock or for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry margin stock or for any other purpose
which might constitute any of the Loans under this Agreement a "purpose credit"
directly or indirectly secured by margin stock within the meaning of Regulation
U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board.
2.14 ADDITIONAL FEES. In addition to any fees described above, the
---------------
Borrower agrees to pay to the Agent, NMS and NationsBank such other fees as may
be agreed to in a separate writing or writings.
31
<PAGE>
ARTICLE III
LETTERS OF CREDIT
-----------------
3.01 LETTERS OF CREDIT. The Issuing Bank agrees, subject to the terms
-----------------
and conditions of this Agreement, upon request and for the account of Borrower,
to issue from time to time Letters of Credit for the Borrower's general
corporate purposes upon delivery to the Issuing Bank of an Application and
Agreement for Letter of Credit in form and content acceptable to the Issuing
Bank; provided, that the Outstanding Letters of Credit shall not exceed the
--------
Total Letter of Credit Commitment. No Letter of Credit shall be issued by the
Issuing Bank with an expiry date or payment date occurring subsequent to the
fifth Business Day preceding the Revolving Credit Termination Date. The Issuing
Bank shall not issue any Letter of Credit if the Outstandings when added to the
face amount of any requested Letter of Credit would exceed the Total Revolving
Credit Commitment.
3.02 REIMBURSEMENT.
-------------
(a) The Borrower hereby unconditionally and irrevocably agrees
immediately to pay to the Issuing Bank on demand at the office designated by the
Issuing Bank all amounts required to pay all drafts drawn under the Letters of
Credit and all reasonable and customary expenses incurred by the Issuing Bank in
connection with the Letters of Credit. The Borrower's obligations to pay the
Issuing Bank under this Section 3.02, and the Issuing Bank's right to receive
------------
the same, shall be absolute, irrevocable and unconditional and shall not be
affected by any circumstance whatsoever. To the extent permitted by Sections
--------
2.01(c)(iv) and 3.02(c)(ii) hereof, all amounts owing in connection with a
- ---------------------------
Letter of Credit shall be paid pursuant to Swing Line Loans or Revolving Credit
Loans. The Borrower agrees that the Issuing Bank may, in its sole discretion,
accept or pay, as complying with the terms of any Letter of Credit, any drafts
or other documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, liquidator, receiver, attorney in fact or other
legal representative of a party who is authorized under such Letter of Credit to
draw or issue any drafts or other documents. The Borrower agrees to pay the
Issuing Bank interest on any amounts not paid when due hereunder at the Base
Rate plus two percent (2%), or the maximum rate permitted by applicable law, if
lower.
(b) In accordance with the provisions of Section 2.01(c) hereof, the
---------------
Issuing Bank shall notify the Agent (and shall also notify the Borrower) of any
drawing under any Letter of Credit as promptly as practicable following the
receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall automatically
acquire on the date of issuance thereof, a Participation in the liability of the
Issuing Bank in respect of each Letter of Credit in an amount equal to such
Lender's Applicable Commitment Percentage of such liability, and to the extent
that the Borrower is obligated to pay the Issuing Bank under Section 3.02(a),
---------------
each Lender (other than the Issuing Bank) thereby shall, as hereinafter
described, absolutely, unconditionally and irrevocably assume, and shall be
unconditionally obligated to pay to the Issuing Bank its Applicable Commitment
Percentage of the liability of the Issuing Bank under such Letter of Credit in
the manner set forth below:
32
<PAGE>
(i) With respect to amounts owing in connection with a Letter of
Credit for which Swing Line Loans shall then be available, such Swing Line
Loans shall be advanced under the Swing Line and each Lender (including the
Swing Line Lender in its capacity as a Lender) shall share in the risk of
loss with respect to such Swing Line Loans by, at the request of the Swing
Line Lender, making a Revolving Credit Loan under the Revolving Credit
Facility to repay such Swing Line Loan in an amount equal to such Lender's
Applicable Commitment Percentage of such Swing Line Loan as set forth in
Section 2.02.
------------
(ii) With respect to amounts owing in connection with a Letter of
Credit for which a Swing Line Loan shall not be available, each Lender
(including the Issuing Bank in its capacity as a Lender) prior to the
Revolving Credit Termination Date, shall, subject to the terms and
conditions of Article II, make a Revolving Credit Loan bearing interest at
----------
the Base Rate to the Borrower by paying to the Agent for the account of the
Issuing Bank at the Principal Office in Dollars and in immediately
available funds, an amount equal to its Applicable Commitment Percentage of
any drawing under a Letter of Credit, all as described in and pursuant to
Section 2.01(c)(iv).
-------------------
(iii) With respect to drawings under any of the Letters of Credit
for which a Revolving Credit Loan is not made as set forth in clause (ii)
above, each Lender, upon receipt from the Agent of notice of a drawing in
the manner described in Section 2.01(c), shall promptly pay to the Agent
---------------
for the account of the Issuing Bank, prior to the applicable time set forth
in Section 2.01(c), its Applicable Commitment Percentage of such drawing.
---------------
Simultaneously with the making of each such payment by a Lender to the
Agent for the account of the Issuing Bank, such Lender shall, automatically
and without any further action on the part of the Issuing Bank or such
Lender, acquire a Participation in an amount equal to such payment
(excluding the portion thereof constituting interest) in the related
Reimbursement Obligation of the Borrower. The Lenders acquisition of and
payment for Participations in any Reimbursement Obligation as set forth in
this clause (iii) shall occur only if such Reimbursement Obligation is not
paid pursuant to Swing Line Loans or Revolving Credit Loans. The
Reimbursement Obligations of the Borrower shall be immediately due and
payable whether by Loans made in accordance with Section 2.01(c) or
---------------
otherwise.
(iv) Each Lender's obligation to make payment to the Agent for the
account of the Issuing Bank pursuant to this Section 3.02(c), and the right
---------------
of the Issuing Bank to receive the same, shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Lender is obligated
to pay but does not pay amounts to the Agent for the account of the Issuing
Bank in full upon such request as required by this Section 3.02(c), such
---------------
Lender shall, on demand, pay to the Agent for the account of the Issuing
Bank interest on the unpaid amount for each day during the period
commencing on the date of notice given to such Lender pursuant to Section
-------
2.01(c) until such Lender pays such amount to the Agent for the account of
-------
the Issuing Bank in full at the interest rate per annum for overnight
borrowing by the Issuing Bank from the Federal Reserve Bank.
(v) In the event the Lenders have purchased Participations in any
Reimbursement Obligation as set forth in clause (iii) above, then at any
time payment is received by the
33
<PAGE>
Issuing Bank as issuer of the Letter of Credit from the Borrower of such
Reimbursement Obligation, in whole or in part, the Issuing Bank shall pay
to each Lender an amount equal to its Applicable Commitment Percentage of
such payment from the Borrower.
(vi) Nothing contained herein shall be deemed to release the
Issuing Bank from any obligation it may incur to reimburse any Lender
arising from the Issuing Bank's wrongful payment of a drawing under any
Letter of Credit as a result of its gross negligence or willful misconduct.
(d) Promptly following the end of each calendar quarter, the Issuing
Bank shall deliver to the Agent, and the Agent shall deliver to each Lender, a
notice describing the aggregate undrawn amount of all Letters of Credit at the
end of such quarter. Upon the request of any Lender from time to time, the
Issuing Bank shall deliver to the Agent, and the Agent shall deliver to such
Lender, any other information reasonably requested by such Lender with respect
to each Outstanding Letter of Credit.
(e) The issuance by the Issuing Bank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Section 5.01 and Section 5.02
------------ ------------
hereof, be subject to the conditions that such Letter of Credit be in such form
and contain such terms as shall be reasonably satisfactory to the Issuing Bank
consistent with the then current practices and procedures of the Issuing Bank
with respect to similar letters of credit, and the Borrower shall have executed
and delivered such other instruments and agreements relating to such Letters of
Credit as the Issuing Bank shall have reasonably requested consistent with such
practices and procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto.
(f) Without duplication of Section 11.11 hereof, the Borrower hereby
-------------
agrees to defend, indemnify and hold harmless the Issuing Bank, each other
Lender and the Agent from and against any and all claims and damages, losses,
liabilities, reasonable costs and expenses which the Issuing Bank, such other
Lender or the Agent may incur (or which may be claimed against the Issuing Bank,
such other Lender or the Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under any Letter of
Credit; provided, that the Borrower shall not be required to indemnify the
--------
Issuing Bank, any other Lender or the Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
the willful misconduct or gross negligence of the party to be indemnified. The
provisions of this Section 3.02(f) shall survive repayment of the Obligations,
---------------
the occurrence of the Revolving Credit Termination Date, and expiration or
termination of this Agreement.
(g) Without limiting Borrower's rights as set forth in Section 3.02(f)
---------------
above, the obligation of the Borrower to immediately reimburse the Issuing Bank
for drawings made under Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement and such Letters of Credit and the related Applications and
Agreements for Letters of Credit, notwithstanding the existence of any of the
following circumstances:
34
<PAGE>
(i) any lack of validity or enforceability of the Letter of
Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Related
Documents");
(ii) any amendment or waiver of or any consent to or departure from
all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense or other rights
which the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), Agent, Lenders or any
other Person, whether in connection with the Loan Documents, the Related
Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between the Borrower
and any beneficiary or any transferee of a Letter of Credit (or any
persons or entities for whom such beneficiary or any such transferee may
be acting), Agent, Lenders or any other Person;
(v) any draft, statement or any other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(vi) any delay, extension of time, renewal, compromise or other
indulgence or modification granted or agreed to by Agent, with or
without notice to or approval by the Borrower in respect of any of
Borrower's Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing; provided, however, that nothing
-------- -------
contained herein shall be deemed to release the Issuing Bank or any
other Lender of any liability for actual loss arising as a result of its
gross negligence or willful misconduct.
3.03 LETTER OF CREDIT FEE. The Borrower agrees to pay (i) to the Agent,
--------------------
for the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages, a fee per annum on the aggregate amount available to be drawn on
each Outstanding Letter of Credit at a rate equal to the Applicable Interest
Addition as in effect from time to time which fee shall be deemed immediately
earned when paid and (ii) to the Issuing Bank for its own account, as issuer of
each Letter of Credit, a fee per annum equal to .125% of the aggregate amount
available to be drawn on each Outstanding Letter of Credit which fee shall be
deemed immediately earned when paid. Such payments of fees provided for in this
Section 3.03 with respect to each Letter of Credit shall be payable in arrears
- ------------
in quarterly installments on the last day of each January, April, July and
October. Such fees shall be calculated on the basis of a year of 360 days for
the actual number of days elapsed.
3.04 ADMINISTRATIVE FEES. The Borrower shall pay to the Issuing Bank
-------------------
such administrative fee and other fees, if any, in connection with the Letters
of Credit in such amounts and at such times as the Issuing Bank and the Borrower
shall agree in writing from time to time.
35
<PAGE>
3.05 EXISTING LETTERS OF CREDIT. The Existing Letters of Credit shall be
--------------------------
deemed issued hereunder as of the Closing Date and constitute both usage of the
Total Letter of Credit Commitment and Outstanding Letters of Credit.
Accordingly, each of the Lenders (other than the Issuing Bank) shall be deemed
to have, as of the Closing Date, a Participation in the liability of the Issuing
Bank in respect of each such Existing Letter of Credit in an amount equal to
such Lender's Applicable Commitment Percentage of such liability.
36
<PAGE>
ARTICLE IV
CHANGE IN CIRCUMSTANCES
-----------------------
4.01 INCREASED COST AND REDUCED RETURN.
---------------------------------
(a) If, after the date hereof, the adoption of any applicable law, rule,
or regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office)
to any tax, duty, or other charge with respect to any Eurodollar Loans,
its Note, or its obligation to make Eurodollar Loans, or change the
basis of taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement or its Note in respect
of any Eurodollar Loans (other than taxes imposed on the overall net
income of such Lender by the jurisdiction in which such Lender has its
principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Reserve
Requirement utilized in the determination of the Adjusted Eurodollar
Rate) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such Lender (or
its Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office)
or on the London interbank market any other condition affecting this
Agreement or its Note or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Agreement or its Note
with respect to any Eurodollar Loans, then the Borrower shall pay to such Lender
on demand such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 4.01(a), the Borrower may, by notice to such Lender
---------------
(with a copy to the Agent), suspend the obligation of such Lender to make or
Continue Eurodollar Loans, or to Convert Base Rate Loans into Loans of such
Type, until the event or condition giving rise to such request ceases to be in
effect (in which case the provisions of Section 4.04 shall be applicable);
------------
provided that such suspension shall not affect the right of such Lender to
- --------
receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital adequacy
or any change therein or in the
37
<PAGE>
interpretation or administration thereof by any Governmental Authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank, or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder to a level below that which
such Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 4.01 for a period
------------
not greater than 180 days and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this Section 4.01
------------
shall furnish to the Borrower and the Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder which shall be
conclusive when made in good faith and in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods. Any claim for compensation under this Section 4.01 shall
------------
be made by the applicable Lender within 180 days after the date on which the
officer of such Lender who has responsibility for compliance with the
obligations under this Agreement knows or has reason to know of such Lender's
right to any compensation under this Section 4.01 or, if any such Lender fails
------------
to deliver such demand within such 180-day period, such Lender shall only be
entitled to compensation under this Section 4.01 from and after the date that is
------------
180 days prior to the date such Lender delivers such demand.
4.02. LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
----------------------------
any Interest Period for any Eurodollar Loan:
(a) the Agent reasonably determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Adjusted
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders reasonably determine (which determination
shall be conclusive) and notify the Agent that the Adjusted Eurodollar Rate
will not adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans, Continue Eurodollar Loans, or to Convert Base Rate
Loans into Eurodollar Loans.
4.03 ILLEGALITY. Notwithstanding any other provision of this Agreement,
----------
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Loans hereunder, then such Lender
shall promptly notify the Borrower thereof and such
38
<PAGE>
Lender's obligation to make or Continue Eurodollar Loans and to Convert Base
Rate Loans into Eurodollar Loans shall be suspended until such time as such
Lender may again make, maintain, and fund Eurodollar Loans (in which case the
provisions of Section 4.04 shall be applicable).
------------
4.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
---------------------------
make a Eurodollar Loan or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 4.01, 4.02 or 4.03
--------------------------
hereof (such Eurodollar Loans being herein called "Affected Loans"), such
--------------
Lender's Affected Loans shall be automatically Converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for Affected Loans (or,
in the case of a Conversion required by Section 4.03 hereof, on such earlier
------------
date as such Lender may specify to the Borrower with a copy to the Agent) and,
unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.01, 4.02 or 4.03 hereof that gave rise to
--------------------------
such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Affected Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
as Eurodollar Loans shall be made or Continued instead as Base Rate Loans,
and all Loans of such Lender that would otherwise be Converted into
Eurodollar Loans shall be Converted instead into (or shall remain as) Base
Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.01, 4.02 or 4.03 hereof that gave rise to
--------------------------
the Conversion of such Lender's Affected Loans pursuant to this Section 4.04 no
------------
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans made by other Lenders, to the extent necessary so that, after
giving effect thereto, all Loans held by the Lenders holding Eurodollar Loans
and by such Lender are held pro rata (as to principal amounts, Types, and
Interest Periods) in accordance with their respective Revolving Credit
Commitments.
4.05 COMPENSATION. Upon the request of any Lender, the Borrower shall
------------
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for
any reason (including, without limitation, the acceleration of the Loans
pursuant to Section 9.01) on a date other than the last day of the
------------
Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Section
-------
5.02 to be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar
----
Loan on the date for such borrowing, Conversion,
39
<PAGE>
Continuation, or prepayment specified in the relevant Borrowing Notice,
prepayment, Continuation, or Conversion under this Agreement.
4.06 TAXES. (a) Any and all payments by the Borrower to or for the
-----
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Lender and
---------
the Agent, (i) taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction under the laws of which such Lender (or its Applicable
Lending Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (ii) any taxes (other than withholding taxes) that would not
be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any withholding taxes
payable with respect to payments hereunder or under any other Loan Document
under applicable law in effect on the date hereof, and (iv) and taxes arising
after the date hereof solely as a result of or attributable to a Lender changing
its Applicable Lending Office after the date such Lender becomes a party hereto
(all such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "Taxes"). If the
-----
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable under this Agreement or any other Loan Document to any Lender or the
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 4.06) such Lender or the Agent receives an amount
------------
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) the Borrower shall furnish to the
Agent, at its principal office, the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Agreement or any
other Loan Document or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 4.06) paid by such Lender or the Agent (as the case may be) and any
------------
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor
40
<PAGE>
form prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States, (ii)
Internal Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and (iii) any other form or
certificate required by any taxing authority (including any certificate required
by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that
--------------- ------
such Lender is entitled to an exemption from or a reduced rate of tax on
payments pursuant to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section 4.06(d)
---------------
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 4.06(a) or
------------------
4.06(b) with respect to Taxes imposed by the United States; provided, however,
- ------- -------- -------
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.06, then such Lender will agree
------------
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 4.06 shall survive the termination of this Agreement, each Lender's
------------
Revolving Credit Commitment and the payment in full of the Notes and all other
Obligations.
(i) Any Lender claiming additional amounts payable pursuant to this
Section 4.06 shall use reasonable efforts (consistent with its internal policy
- ------------
and legal and regulatory restrictions) to file any certificate or document
requested by the Borrower or to change the jurisdiction of its Applicable
Lending Office if the making of such filing or change would avoid the need for
or reduce the amount of any such additional amounts which may thereafter accrue
and would not, in the sole judgment of such Lender, be disadvantageous to such
Lender. The Borrower shall promptly upon request by any Lender or the Agent take
all actions (including, without limitation, the completion of forms and the
provisions of information to the appropriate taxing authorities) reasonably
requested by such Lender or the Agent to secure the benefit of any exemption
from, or relief with respect to, Taxes or Other Taxes in relation to any amounts
payable under this Agreement.
41
<PAGE>
(j) In the event that an additional payment is made under Section
-------
4.06(a) or 4.06(c) for the account of any Lender and such Lender, in its
- ------- -------
reasonable opinion, determines that it has received or been granted a credit
against or release or remission for, or repayment of, any tax paid or payable by
it in respect of or calculated with reference to the deduction or withholding
giving rise to such payment, such Lender shall, to the extent that it can do so
without prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to the Borrower such amount as such Lender shall
reasonably determine to be attributable to such deduction or withholding and as
will leave such Lender (after such payment) in no better or worse position than
it would have been in if the Borrower had not been required to make such
deduction or withholding.
42
<PAGE>
ARTICLE V
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
--------------------------------------------------------
5.01 CONDITIONS OF INITIAL LOAN AND ISSUANCE OF LETTERS OF CREDIT. The
------------------------------------------------------------
obligation of the Lenders to make the initial Loan and of the Issuing Bank to
issue the Letters of Credit is subject to the following conditions precedent:
(a) The Agent shall have received on the Closing Date, in form and
substance satisfactory to the Agent and Lenders, or otherwise be satisfied as
to, each of the following:
(i) executed originals of each of this Agreement, the Notes and
the other Loan Documents, together with all schedules and exhibits
thereto;
(ii) favorable written opinions of special counsel to the Borrower
and the Guarantors dated the Closing Date, addressed to the Agent and
the Lenders and satisfactory to the Agent, the Lenders and to Smith
Helms Mulliss & Moore, L.L.P., special counsel to the Agent,
substantially in the form of Exhibit I attached hereto and incorporated
---------
herein by reference;
(iii) resolutions of the boards of directors or other appropriate
governing body (or of the appropriate committee thereof) of the Borrower
and each of the Guarantors certified by its secretary or assistant
secretary or other appropriate official as of the Closing Date,
appointing (in the case of the Borrower) the initial Authorized
Representatives and approving and adopting the Loan Documents to be
executed by such Person, and authorizing the execution and delivery
thereof and the incurrence of obligations thereunder;
(iv) specimen signatures of officers of the Borrower and each
Guarantor executing the Loan Documents on behalf of such Person,
certified by the secretary or assistant secretary or other appropriate
official of the Borrower or Guarantor, as applicable;
(v) the charter documents or documents of establishment of the
Borrower and each Guarantor certified as of a recent date by the
Secretary of State or other appropriate Governmental Authority of its
jurisdiction of incorporation (or other organization, as applicable);
(vi) the by-laws of the Borrower and, to the extent the same (or
similar organizational documents) exist, each Guarantor certified as of
the Closing Date as true and correct by the secretary or assistant
secretary or other appropriate official of the Person to whom such by-
laws (or similar organizational documents) relate;
(vii) certificates issued as of a recent date by the Secretary of
State or other appropriate Governmental Authority of its jurisdiction of
incorporation (or other organization, as applicable) as to the due
existence and, if issued by such governmental authority, good standing of
the Borrower and each Guarantor therein;
43
<PAGE>
(viii) appropriate certificates of qualification to do business,
good standing and, where appropriate, authority to conduct business under
assumed name, issued in respect of the Borrower and each Guarantor as of
a recent date by the Secretary of State or other appropriate Governmental
Authority of each jurisdiction in which the failure to be qualified to do
business or authorized so to conduct business could reasonably be
expected to have a Material Adverse Effect;
(ix) notice of appointment of the initial Authorized Representative
of the Borrower in the form of Exhibit C hereto;
---------
(x) certificate of an Authorized Representative dated the Closing
Date demonstrating pro forma compliance with the financial covenants
contained in Sections 8.02 and 8.03, all as of November 1, 1997,
------------- ----
substantially in the form of Exhibit J attached hereto;
---------
(xi) evidence of insurance required by Section 7.05;
------------
(xii) an initial Borrowing Notice;
(xiii) all fees payable by the Borrower on the Closing Date to the
Agent, NationsBank, NMS and the Lenders, including any upfront fee as
agreed to in writing;
(xiv) historical pro forma consolidated financial statements giving
effect to the proposed combination with Carson (the "Carson Acquisition")
as set forth in the Borrower's Registration Statement on Form S-4,
Registration No.333-41563, as filed with the Securities and Exchange
Commission on December 5, 1997 (the "Filing Date") as amended by each
amendment thereto (as so amended, the "Registration Statement"), as well
as the actual historical consolidated financial statements of the
Borrower and its Subsidiaries incorporated by reference in such
Registration Statement;
(xv) evidence as to the termination of the Existing Credit
Agreement and repayment in full of all obligations (other than with
respect to the undrawn principal amount of the Existing Letters of Credit
but specifically including any reimbursement obligations then
outstanding) owing to the agent and lenders thereunder;
(xvi) certificate of an Authorized Representative stating that all
conditions precedent to the consummation of the Carson Acquisition as set
forth in the Agreement and Plan of Merger dated as of October 29, 1997
(the "Carson Acquisition Agreement") have been satisfied or waived;
(xvii) fully executed copy of the Carson Acquisition Agreement and
other related documents, instruments and agreements requested by the
Agent, each certified as true and complete by an Authorized
Representative;
(xviii) evidence as to the termination of that certain Revolving
Credit and Guaranty Agreement among Carson, ABN Amro Bank N.V., and the
other parties thereto dated as of
44
<PAGE>
October 16, 1997 and repayment in full of all obligations (other than the
undrawn principal amount of the letters of credit then outstanding listed
on Schedule 8.04 hereof) owing thereunder; and
-------------
(xix) such other documents, instruments, certificates and opinions
as the Agent or any Lender may reasonably request on or prior to the
Closing Date in connection with the consummation of the transactions
contemplated hereby.
(b) Each of the following shall have occurred or be true:
(i) there shall not be any action, suit, investigation or
proceeding pending or threatened by, before or otherwise involving any
Governmental Authority or other Person that could reasonably be expected
to have a material adverse effect on (x) the business, business
prospects, results of operations or condition (financial or otherwise) of
the Borrower or its Subsidiaries or (y) the ability of the Borrower or
its Subsidiaries to observe and perform the covenants and agreements
contained herein or in any other Loan Document or the ability of any
Lender to receive the benefit of any remedy provided thereto under any
Loan Document or (z) any transaction contemplated hereby;
(ii) consummation of the Carson Acquisition, which shall not have a
Material Adverse Effect; and
(iii) the Borrower and its Subsidiaries shall be in compliance with
respect to all existing financial obligations.
(c) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred a material adverse change since
the Filing Date in the business, business prospects, results of
operations or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole or Carson and its Subsidiaries taken as a
whole, or in the facts and information regarding such entities as
represented to date;
(ii) the Agent and NMS shall have completed all due diligence
deemed necessary with respect to the business, operations, financial
condition and prospects of Carson and its Subsidiaries; and
(iii) the Agent shall have received and reviewed, with results
satisfactory to the Agent and its counsel, all information regarding
litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt
agreements, property ownership, and contingent liabilities of the
Borrower and its Subsidiaries.
5.02 CONDITIONS OF LOANS. The obligations of the Lenders to make any
-------------------
Loans, the Swing Line Lender to make Swing Line Loans and the Issuing Bank to
issue Letters of Credit hereunder,
45
<PAGE>
on or subsequent to the Closing Date are (except as set forth in Section
-------
2.01(c)(iv), 2.02(e) or 3.02(c)) subject to the satisfaction of the following
- --------------------------------
conditions:
(a) the Agent shall have received a notice of such borrowing or request
if required by Article II hereof;
----------
(b) the representations and warranties of the Borrower and each
Guarantor set forth in Article VI hereof and in each of the other Loan Documents
----------
shall be true and correct in all material respects on and as of the date of such
Loan or issuance of such Letters of Credit, as the case may be, with the same
effect as though such representations and warranties had been made on and as of
such date, other than such representations and warranties which expressly relate
to an earlier date, except that the representations and warranties set forth in
Section 6.01(d) and (e) shall be deemed to include and take into account the
- -----------------------
Carson Acquisition and any merger or consolidation permitted under Section 8.08
------------
hereof, and except that the financial statements referred to in Section
-------
6.01(f)(i) shall be deemed to be those financial statements most recently
- ----------
delivered to the Agent and the Lenders pursuant to Section 7.01 hereof;
------------
(c) in the case of the issuance of a Letter of Credit, Borrower shall
have executed and delivered to the Issuing Bank an Application and Agreement for
Letter of Credit in form and content acceptable to the Issuing Bank together
with such other instruments and documents as it may reasonably request;
(d) at the time of each such Loan, Swing Line Loan or issuance of each
Letter of Credit, as the case may be, no Default or Event of Default shall have
occurred and be continuing;
(e) immediately after giving effect to a Swing Line Loan, the aggregate
Swing Line Outstandings shall not exceed the Total Swing Line Commitment;
(f) immediately after issuing any Letter of Credit, the aggregate
Outstanding Letters of Credit shall not exceed the Total Letter of Credit
Commitment; and
(g) immediately after giving effect to any Loan or Letter of Credit (i)
the sum of Outstandings shall not exceed the Total Revolving Credit Commitment
and (ii) each Lender's Applicable Commitment Percentage of Revolving Credit
Loans and Participations shall not exceed its Revolving Credit Commitment.
46
<PAGE>
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
6.01 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
------------------------------
warrants to the Lenders and the Agent with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans and issuance of Letters
of Credit), that:
(a) ORGANIZATION AND AUTHORITY.
--------------------------
(i) the Borrower and each Subsidiary is a legal entity duly organized
or created and validly existing under the laws of the jurisdiction of its
incorporation or creation;
(ii) the Borrower and each Subsidiary (1) has the requisite power and
authority to own its properties and assets and to carry on its business as
now being conducted, and (2) is qualified to do business in each
jurisdiction in which its ownership or lease of property or the nature of
its business makes such qualification necessary and in which failure so to
qualify could reasonably be expected to have a Material Adverse Effect;
(iii) the Borrower has the power and authority to execute, deliver
and perform this Agreement and the Notes, and to borrow hereunder, and to
execute, deliver and perform each of the other Loan Documents to which it
is a party;
(iv) each Guarantor has the power and authority to execute, deliver
and perform the Guaranty and the other Loan Documents to which it is a
party; and
(v) each of the Loan Documents to which a Loan Party is a party has
been duly executed and delivered by such Loan Party and is the legal, valid
and binding obligation or agreement, as the case may be, of such Loan
Party, enforceable against such Loan Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general principles of
equity which may limit the availability of equitable remedies (whether in a
proceeding at law or in equity);
(b) LOAN DOCUMENTS. The execution, delivery and performance by a Loan
--------------
Party of each of the Loan Documents to which such Loan Party is a party:
(i) have been duly authorized by all requisite corporate, partnership
or other similar action (including any required shareholder approval) of
such Loan Party required for the lawful execution, delivery and performance
thereof;
(ii) do not violate any provisions of (1) applicable law, rule or
regulation, (2) any order of any court or other agency of government
binding on the Borrower or any Guarantor,
47
<PAGE>
or their respective properties, or (3) the charter documents, documents of
creation, by-laws, partnership agreements or other similar governing
documents of such Loan Party;
(iii) will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or lapse of
time, or both, would constitute an event of default, under any indenture,
agreement or other instrument to which any Loan Party is a party, or by
which the properties or assets of any Loan Party are bound; and
(iv) will not result in the creation or imposition of any Lien, charge
or encumbrance of any nature whatsoever upon any of the properties or
assets of any Loan Party except any Liens in favor of the Agent and the
Lenders created by the Loan Documents;
(c) SOLVENCY. Each Loan Party is Solvent after giving effect to the Carson
--------
Acquisition and the transactions contemplated by this Agreement and the other
Loan Documents;
(d) SUBSIDIARIES AND STOCKHOLDERS. Borrower has no Subsidiaries other than
-----------------------------
those Persons listed as Subsidiaries in Schedule 6.01(d) hereto (which Schedule
----------------
includes all Subsidiaries acquired in connection with the Carson Acquisition)
and Subsidiaries after the date hereof acquired or created in compliance with
Section 7.18 (if then applicable); Schedule 6.01(d) to this Agreement states as
- ------------ ----------------
of the date hereof the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or equity interest owned by Borrower or by any such
Subsidiary; the outstanding shares or other equity interests of each Subsidiary
have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
--------
6.01(d) and all shares and other interests for each of its wholly owned
- -------
Subsidiaries, free and clear of any Lien;
(e) OWNERSHIP INTERESTS. Borrower owns no interest in any Person other
-------------------
than as permitted under Section 8.07;
------------
48
<PAGE>
(f) FINANCIAL CONDITION.
-------------------
(i) The Borrower has heretofore furnished to each Lender (1) the
audited income statement, balance sheet, and statements of cash flow and
changes in shareholders' equity of the Borrower and its Subsidiaries (which
do not give effect to the Carson Acquisition) for the Fiscal Year ended
February 1, 1997 (the "Borrower's Audited Statements") and (2) the
unaudited pro forma condensed combined income statements of the Borrower
and its Subsidiaries (giving effect to the Carson Acquisition) for the
years ended February 3, 1996 and February 1, 1997 and for the six-month
period ended August 2, 1997 and the unaudited pro forma combined balance
sheet of the Borrower and its Subsidiaries as at August 2, 1997
(collectively, the "Combined Six Month Statements"). Except as set forth
therein, the Borrower's Audited Statements present fairly, in all material
respects, the financial condition of the Borrower and its Subsidiaries as
of the Fiscal Year then ended and the results of operations and changes in
stockholders' equity for the Fiscal Year then ended, all in conformity with
Generally Accepted Accounting Principles applied on a basis consistent with
prior periods. The Combined Six Month Statements have been prepared by the
Borrower and Carson, based on their respective financial statements for
such periods and at such date together with available information and
certain assumptions which the Borrower believes to be reasonable, and give
pro forma effect to the Carson Acquisition under the pooling-of-interest
method of accounting and the Acquisition by the Borrower of Parisian, Inc.
accounted for as a purchase applying Generally Accepted Accounting
Principles and presentation of certain expense and income items on a basis
consistent with those applied by the Borrower in preparation of its
financial statements as at, and for the Fiscal Years ended, February 3,
1996 and February 1, 1997;
(ii) since the Filing Date, there has been no material adverse change
in the condition, financial or otherwise, of the Borrower and its
Subsidiaries taken as a whole or in the businesses, properties and
operations of the Borrower and its Subsidiaries, considered as a whole, nor
have such businesses or properties, taken as a whole, been materially
adversely affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo or act of
God;
(iii) except as set forth in the financial statements referred to in
Section 6.01(f)(i) or in Schedule 6.01(f) or Schedule 6.01(j) attached
------------------ ---------------- ----------------
hereto, or as permitted under Section 8.04 hereof or any other provision of
------------
this Agreement or any other Loan Document, neither Borrower nor any
Subsidiary has incurred, other than in the ordinary course of business, any
material indebtedness, obligations, commitments or other liability
contingent or otherwise which remain outstanding or unsatisfied;
(g) TITLE TO PROPERTIES. The Borrower and its Subsidiaries have title to
-------------------
all their respective owned real and personal properties, subject to no Liens of
any kind, except for (i) the Liens described in Schedule 6.01(g) attached hereto
----------------
and (ii) Liens permitted under Section 8.05 hereof;
------------
(h) TAXES. Except as set forth in Schedule 6.01(h) attached hereto, the
----- ----------------
Borrower and its Subsidiaries have filed or caused to be filed all federal,
state, local and foreign tax returns which are
49
<PAGE>
required to be filed by them and except for taxes and assessments being
contested as permitted under Section 7.04, have paid or caused to be paid all
------------
taxes as shown on said returns or on any assessment received by them, to the
extent that such taxes have become due;
(i) OTHER AGREEMENTS. Neither the Borrower nor any Subsidiary is
----------------
(i) a party to any judgment, order, decree or any agreement or
instrument or subject to restrictions which could reasonably be expected to
have a Material Adverse Effect; or
(ii) in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement or
instrument to which the Borrower or any Subsidiary is a party, which
default has, or if not remedied within any applicable grace period could
reasonably be expected to have, a Material Adverse Effect;
(j) LITIGATION. Except as set forth in Schedule 6.01(j) attached hereto,
---------- ----------------
there is no action, suit, litigation, investigation or proceeding at law or in
equity or by or before any Governmental Authority pending, including without
limitation matters pertaining to labor, employment, wages, hours, occupational
safety and taxation, or, to the knowledge of the Borrower, threatened by or
against the Borrower or any Subsidiary or affecting the Borrower or any
Subsidiary or any properties or rights of the Borrower or any Subsidiary, an
adverse ruling or determination in which could reasonably be expected to have a
Material Adverse Effect;
(k) MARGIN STOCK. Neither the Borrower nor any agent acting in its behalf
------------
has taken or will take any action which might cause this Agreement or any of the
documents or instruments delivered pursuant hereto to violate any regulation of
the Board or to violate the Securities Exchange Act of 1934, as amended, or the
Securities Act of 1933, as amended, or any state securities laws, in each case
as in effect on the date hereof;
(l) INVESTMENT COMPANY. Neither the Borrower nor any Subsidiary is an
------------------
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (15 U.S.C. (S) 80a-1, et seq.). The
application of the proceeds of the Loans and repayment thereof by the Borrower
and the performance by the Borrower of the transactions contemplated by this
Agreement will not violate any provision of said Act, or any rule, regulation or
order issued by the Securities and Exchange Commission thereunder, in each case
as amended from time to time;
(m) PATENTS, ETC. Except as set forth in Schedule 6.01(m) attached hereto,
------------ ----------------
the Borrower and its Subsidiaries own or have the right to use, under valid
license agreements or otherwise, all material patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights, trade secrets and
copyrights necessary to the conduct of their businesses as now conducted,
without known conflict with any patent, license, franchise, trademark, trade
secrets and confidential commercial or proprietary information, trade name,
copyright, rights to trade secrets or other proprietary rights of any other
Person;
50
<PAGE>
(n) NO UNTRUE STATEMENT. Neither this Agreement nor any other Loan
-------------------
Document or certificate or document executed and delivered by or on behalf of
any Loan Party in accordance with or pursuant to any Loan Document contains any
misrepresentation or untrue statement of material fact or omits to state a
material fact necessary, in light of the circumstance under which it was made,
in order to make any such representation or statement contained therein not
misleading in any material respect;
(o) NO CONSENTS, ETC. Except as set forth in Schedule 6.01(o) attached
---------------- ----------------
hereto, neither the respective businesses or properties of the Borrower or any
Subsidiary, nor any relationship between the Borrower or any Subsidiary and any
other Person, nor any circumstance in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated hereby
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority on the part of
the Borrower or any Subsidiary as a condition to the execution, delivery and
performance of, or consummation of the transactions contemplated by, this
Agreement or the other Loan Documents or if so, such consent, approval,
authorization, filing, registration or qualification has been obtained or
effected, as the case may be;
(p) BENEFIT PLANS.
-------------
(i) None of the employee benefit plans maintained at any time by the
Borrower or any Subsidiary or the trusts created thereunder has engaged in
a prohibited transaction or violated any Foreign Benefit Law which could
subject any such employee benefit plan or trust to a material tax or
penalty on prohibited transactions imposed under Internal Revenue Code
Section 4975 or ERISA or under any Foreign Benefit Law;
(ii) None of the employee benefit plans maintained at any time by the
Borrower or any Subsidiary which are employee pension benefit plans and
which are subject to Title IV of ERISA or any Foreign Benefit Law or the
trusts created thereunder has been terminated so as to result in a material
liability of the Borrower under ERISA or under any Foreign Benefit Law nor
has any such employee benefit plan of the Borrower or any Subsidiary
incurred any material liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA or any other Person exercising similar duties
and functions under any Foreign Benefit Law, other than for required
insurance premiums which have been paid or are not yet due and payable;
neither the Borrower nor any Subsidiary has withdrawn from or caused a
partial withdrawal to occur with respect to any Multi-employer Plan
resulting in any material assessed and unpaid withdrawal liability; the
Borrower and the Subsidiaries have made or provided for all contributions
in all material amounts to all such employee pension benefit plans which
they maintain and which are required as of the end of the most recent
fiscal year under each such plan; neither the Borrower nor any Subsidiary
has incurred any material accumulated funding deficiency with respect to
any such plan, whether or not waived; nor has there been any reportable
event, or other event or condition, which presents a material risk of
termination of any such employee benefit plan by such Pension Benefit
Guaranty Corporation or any other Person exercising similar duties and
functions under any Foreign Benefit Law;
51
<PAGE>
(iii) The present value of all vested accrued benefits under the
employee pension benefit plans which are subject to Title IV of ERISA or
any Foreign Benefit Law, maintained by the Borrower or any Subsidiary, did
not, as of the most recent valuation date for each such plan, exceed by a
material amount the then current value of the assets of such employee
benefit plans allocable to such benefits;
(iv) To the knowledge of the Borrower based on its actual knowledge
and based on information, if any, that the Lenders may provide to the
Borrower from time to time, the consummation of the Loans and the issuance
of the Letters of Credit provided for in Article II and Article III will
---------- -----------
not involve any prohibited transaction under ERISA or any Foreign Benefit
Law which is not subject to a statutory or administrative exemption;
(v) To the best of the Borrower's knowledge, each employee pension
benefit plan subject to Title IV of ERISA or any Foreign Benefit Law,
maintained by the Borrower or any Subsidiary, has been administered in
accordance with its terms in all material respects and is in compliance in
all material respects with all applicable requirements of ERISA and other
applicable laws, regulations and rules and any applicable Foreign Benefit
Law;
(vi) There has been no material withdrawal liability incurred and
unpaid with respect to any Multi-employer Plan to which the Borrower
or any Subsidiary is or was a contributor;
(vii) As used in this Agreement, the terms "employee benefit
plan," "employee pension benefit plan," "accumulated funding deficiency,"
"reportable event," and "accrued benefits" shall have the respective
meanings assigned to them in ERISA, and the term "prohibited transaction"
shall have the meaning assigned to it in Code Section 4975 and ERISA;
(viii) Neither the Borrower nor any Subsidiary has any liability not
disclosed on any of the financial statements furnished to the Lenders
pursuant to Section 7.01 hereof, contingent or otherwise, under any plan or
------------
program or the equivalent for unfunded post-retirement benefits, including
pension, medical and death benefits, which liability could reasonably be
expected to have a Material Adverse Effect;
(q) NO DEFAULT. As of the date hereof, there does not exist any Default or
----------
Event of Default hereunder;
(r) ENVIRONMENTAL MATTERS. The Borrower and each Subsidiary is in
---------------------
compliance with all applicable Environmental Laws the failure of which to comply
could reasonably be expected to have a Material Adverse Effect and has been
issued and currently maintains all federal, state and local permits, licenses,
certificates and approvals the failure of which to obtain or maintain could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary has been notified of any material pending or threatened
action, suit, proceeding or investigation, and neither the Borrower nor any
Subsidiary is aware of any facts, which (a) calls into question, or could
reasonably be expected to call into question, compliance by the Borrower or any
Subsidiary with any
52
<PAGE>
Environmental Laws, (b) seeks, or could reasonably be expected to form the basis
of a meritorious proceeding, to suspend, revoke or terminate any license, permit
or approval necessary for the operation of the Borrower's or any Subsidiary's
business or facilities or for the generation, handling, storage, treatment or
disposal of any Hazardous Materials, or (c) seeks to cause, or could reasonably
be expected to form the basis of a meritorious proceeding to cause, any property
of the Borrower or any Subsidiary to be subject to any restrictions on
ownership, use, occupancy or transferability under any Environmental Law, in
each case which could reasonably be expected to have a Material Adverse Effect;
(s) RICO. Neither the Borrower nor any Subsidiary is engaged in or has
----
engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws;
(t) COMPLIANCE WITH LAWS. The Borrower and each Subsidiary is in
--------------------
compliance with all laws, rules and regulations, and all applicable laws, rules
and regulations pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational safety and taxation
and all other valid requirements of any Governmental Authority with respect to
the conduct of its business, the noncompliance with which could reasonably be
expected to have a Material Adverse Effect.
53
<PAGE>
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
Until this Agreement has been terminated in accordance with the terms
hereof, unless the Required Lenders shall otherwise consent in writing, the
Borrower will:
7.01 FINANCIAL REPORTS, ETC. (a) as soon as practical and in any event
----------------------
within ninety-five (95) days after the end of each Fiscal Year of the Borrower,
deliver or cause to be delivered to the Agent and each Lender (i) the
consolidated balance sheets of the Borrower and its Subsidiaries, in each case
with the notes thereto, the related consolidated statements of operations, cash
flow, and shareholders' equity and the respective notes thereto for such Fiscal
Year, setting forth in the case of the consolidated statements comparative
financial statements for the preceding Fiscal Year, all prepared in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis and
containing, with respect to the consolidated financial reports, an opinion of
Coopers & Lybrand, L.L.P., or any other "Big 6" accounting firm or other such
independent certified public accountants of recognized national standing
selected by the Borrower and approved by the Agent, which is unqualified and
devoid of any exception which is not acceptable to the Required Lenders; and
(ii) a certificate of an Authorized Representative as to the existence or non-
existence of any Default or Event of Default, demonstrating compliance with
Sections 8.01, 8.02 and 8.03 of this Agreement as of the end of the most recent
- ----------------------------
Fiscal Year for which such covenant compliance is demonstrated, which
certificate shall be substantially in the form attached hereto as Exhibit J and
---------
incorporated herein by reference;
(b) as soon as practical and in any event within fifty (50) days after the
end of each quarterly period of each Fiscal Year (except the last reporting
period of the Fiscal Year), or if an extension has been granted by the
Securities and Exchange Commission for the filing by the Borrower of its
quarterly report on Form 10-Q, then by the earlier of the date such Form 10-Q is
actually filed and the last day of such extended time period, but in no event
later than sixty (60) days after the end of such quarterly period for which such
Form 10-Q is to be filed, deliver to the Agent and each Lender (i) the
consolidated balance sheets of the Borrower and its Subsidiaries, in each case
as of the end of such reporting period, the related consolidated statements of
operations and cash flow for such reporting period and for the period from the
beginning of the Fiscal Year through the end of such reporting period,
accompanied by a certificate of an Authorized Representative to the effect that
such financial statements present fairly, in all material respects, the
financial position of the Borrower and its Subsidiaries as of the end of such
reporting period and the results of their operations and the changes in their
financial position for such reporting period, all of such interim financial
statements being prepared on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis, subject to normal
year-end audit adjustments, and (ii) a certificate of an Authorized
Representative as to the existence or non-existence of any Default or Event of
Default and containing computations for such quarter comparable to that required
pursuant to Section 7.01(a)(ii);
-------------------
(c) together with each delivery of the financial statements required by
Section 7.01(a)(i) hereof, deliver to the Agent and each Lender a letter from
- ------------------
the Borrower's accountants specified in
54
<PAGE>
Section 7.01(a)(i) hereof stating that in performing the audit necessary to
- ------------------
render an opinion on the financial statements delivered under Section
7.01(a)(i), they obtained no knowledge of any Default or Event of Default by the
- ----------
Borrower in the fulfillment of the terms and provisions of this Agreement
insofar as they relate to financial matters (which at the date of such statement
remains uncured); and if the accountants have obtained knowledge of such Default
or Event of Default, a statement specifying the nature and period of existence
thereof;
(d) promptly upon their becoming available to the Borrower, the Borrower
shall deliver to the Agent and each Lender a copy of (i) all regular or special
reports or effective registration statements which Borrower or any Subsidiary
shall file with the Securities and Exchange Commission (or any successor
thereto) or any securities exchange, and (ii) any proxy statement distributed by
the Borrower to its shareholders, bondholders or the financial community in
general;
(e) promptly, and in any event within two (2) Business Days, after the
public announcement of any change in the Debt Rating, deliver written notice to
the Agent of such new Debt Rating and the Debt Rating Date. The Borrower shall
also provide such additional evidence of such new Debt Rating as may be
requested by the Agent, including without limitation evidence from either or
both of S&P and Moody's (or such other Alternative Rating Agency), as
applicable, within ten (10) Business Days of such request; and
(f) promptly, from time to time, deliver or cause to be delivered to the
Agent and each Lender such other information regarding Borrower's and each
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request.
7.02 MAINTAIN PROPERTIES. (i) Maintain all properties necessary to its
-------------------
operations in good working order and condition (ordinary wear and tear excepted)
and make all needed repairs, replace ments and renewals as are necessary to
conduct its business in accordance with customary business practices and (ii)
preserve and protect its material patents, copyrights, licenses, trademarks,
trademark rights, trade names, trade name rights, trade secrets and know-how
necessary or useful in the conduct of its operations.
7.03 EXISTENCE, QUALIFICATION, ETC. Do or cause to be done all things
-----------------------------
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits, except to
the extent conveyed in connection with transactions permitted under Sections
--------
8.06 or 8.08 hereof, and maintain its license or qualification to do business as
- ------------
a foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary and in which the failure so to qualify could
reasonably be expected to have a Material Adverse Effect.
7.04 TAXES. Pay all taxes, assessments, governmental charges, claims for
-----
labor, supplies, rent and any other obligation which, if unpaid, might become a
Lien against any of its properties except any of the foregoing being contested
in good faith by appropriate proceedings diligently conducted and against which
reserves sufficient under GAAP have been established.
55
<PAGE>
7.05 INSURANCE. (i) Maintain insurance with responsible insurance
---------
carriers against loss or damage by fire and other hazards as are customarily
insured against by similar businesses owning such properties similarly situated,
(ii) maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property having such limits, deductibles, exclusions and co-insurance and other
provisions providing no less coverage than insurance customarily carried by
similar businesses owning similar properties and conducting similar operations,
and (iii) maintain insurance under all applicable workers' compensation laws (or
in the alternative, maintain required reserves if self-insured for workers'
compensation purposes).
7.06 TRUE BOOKS. Keep true books of record and account in compliance
----------
with Generally Accepted Accounting Principles.
7.07 RIGHT OF INSPECTION. Permit any Lender or the Agent (through their
-------------------
employees and other agents), at the expense of such Lender or the Agent, as
applicable, or at the reasonable expense of the Borrower if a Default has
occurred and is continuing, to visit and inspect any of the properties,
corporate books and financial reports of the Borrower and its Subsidiaries, and
to discuss their respective affairs, finances and accounts with their principal
officers and independent certified public accountants, all at reasonable times,
at reasonable intervals and with reasonable prior notice.
7.08 OBSERVE ALL LAWS; LICENSES. Comply in all material respects with
--------------------------
all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business, including
without limitation Environmental Laws, the noncompliance with which could
reasonably be expected to have a Material Adverse Effect. Borrower shall also
obtain and maintain all licenses, permits, certifications and approvals of all
applicable Governmental Authorities as are required for the conduct of its
business as currently conducted and as contemplated by the Loan Documents and
with respect to which the failure to so obtain and maintain could reasonably be
expected to have a Material Adverse Effect.
7.09 COVENANTS EXTENDING TO SUBSIDIARIES. Cause each of its Subsidiaries
-----------------------------------
to do with respect to itself, its business and its assets, each of the things
required of the Borrower in Sections 7.02 through 7.08, inclusive.
------------- ----
7.10 OFFICER'S KNOWLEDGE OF DEFAULT. Upon any Authorized Representative
------------------------------
of the Borrower obtaining knowledge of any Default or Event of Default, promptly
notify the Agent of the nature thereof, the period of existence thereof, and
what action the Borrower proposes to take with respect thereto and stating that
such notice is a "notice of default."
7.11 SUITS OR OTHER PROCEEDINGS. Upon any Authorized Representative of
--------------------------
the Borrower obtaining knowledge of any litigation or other proceeding being
instituted against the Borrower or any Subsidiary, or any attachment, levy,
execution or other process being instituted against any assets of the Borrower
or any Subsidiary, in an aggregate amount greater than $5,000,000 not otherwise
covered by insurance, promptly deliver to the Agent written notice thereof
stating the nature and status of such litigation, proceeding, levy, execution or
other process.
56
<PAGE>
7.12 NOTICE OF DISCHARGE OF HAZARDOUS MATERIAL OR ENVIRONMENTAL
----------------------------------------------------------
COMPLAINT. Promptly provide to the Agent true, accurate and complete copies of
- ---------
any and all written notices, complaints, orders, directives, claims, or
citations received by the Borrower or any Subsidiary relating to any of the
following, in each case which could reasonably be expected to have a Material
Adverse Effect: (a) violation or alleged violation by the Borrower or any
Subsidiary of any applicable Environmental Laws; (b) release or threatened
release by the Borrower or any Subsidiary, or by any Person handling,
transporting or disposing of any Hazardous Material on behalf of the Borrower or
any Subsidiary, or at any facility or property owned or leased or operated by
the Borrower or any Subsidiary, of any Hazardous Material, except where
occurring legally pursuant to a permit or license or otherwise; or (c) liability
or alleged liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous Materials.
7.13 ENVIRONMENTAL COMPLIANCE. If the Borrower or any Subsidiary shall
------------------------
receive any letter, notice, complaint, order, directive, claim or citation from
any Governmental Authority alleging that the Borrower or any Subsidiary has
violated any applicable Environmental Law, released any Hazardous Material, or
is liable for the costs of cleaning up, removing, remediating or responding to a
release of Hazardous Materials, in each case the violation or occurrence of
which could reasonably be expected to have a Material Adverse Effect, the
Borrower shall promptly (and in any event within the time period permitted and
to the extent required by the applicable Environmental Law or by the applicable
Governmental Authority responsible for enforcing such Environmental Law) remove
or remedy, or cause the applicable Subsidiary to remove or remedy, such
violation or release or satisfy such liability.
7.14 [Reserved]
7.15 FURTHER ASSURANCES. At its cost and expense, upon request of the
------------------
Agent, duly execute and deliver or cause another Loan Party to duly execute and
deliver, to the Agent such further instruments, documents, certificates, and
agreements, and do and cause another Loan Party to do such further acts that
may be reasonably necessary or advisable in the reasonable opinion of the Agent
to carry out the provisions and purposes of this Agreement and the other Loan
Documents.
7.16 BENEFIT PLANS. Comply in all material respects with all
-------------
requirements of ERISA and any Foreign Benefit Law applicable to it and furnish
to the Agent as soon as possible and in any event (i) within thirty (30) days
after the Borrower knows or has reason to know that any reportable event or
other event under any Foreign Benefit Law with respect to any employee benefit
plan maintained by the Borrower or any Subsidiary which could give rise to
termination or the imposition of any material tax or penalty has occurred,
written statement of an Authorized Representative describing in reasonable
detail such reportable event or such other event and any action which the
Borrower or applicable Subsidiary proposes to take with respect thereto,
together with a copy of the notice of such reportable event given to the Pension
Benefit Guaranty Corporation or to any other applicable Person exercising
similar duties and functions under any Foreign Benefit Law or a statement that
said notice will be filed with the annual report of the United States Department
of Labor with respect to such plan if such filing has been authorized, (ii)
promptly after receipt thereof, a copy of any notice that the Borrower or any
Subsidiary may receive from the Pension Benefit Guaranty Corporation or from any
other Person exercising similar duties and functions under any Foreign Benefit
Law relating to
57
<PAGE>
the intention of the Pension Benefit Guaranty Corporation or any such Person to
terminate any employee benefit plan or plans of the Borrower or any Subsidiary
or to appoint a trustee to administer any such plan, (iii) within 10 days after
a filing with the Pension Benefit Guaranty Corporation pursuant to
Section 412(n) of the Code or with any Person pursuant to any Foreign Benefit
- --------------
Law of a notice of failure to make a required installment or other payment with
respect to a plan, a certificate of an Authorized Representative setting forth
details as to such failure and the action that the Borrower or its affected
Subsidiary, as applicable, proposes to take with respect thereto, together with
a copy of such notice given to the Pension Benefit Guaranty Corporation or to
such Person, and (iv) promptly after the incurrence thereof and in any event
within 10 days, notice of withdrawal by the Borrower or any Subsidiary from any
Multi-employer Plan which withdrawal could reasonably result in a material
withdrawal liability.
7.17 CONTINUED OPERATIONS. Continue at all times to conduct its business
--------------------
and engage principally in the same or complementary line or lines of business
substantially as heretofore conducted (subject to the right to dispose of assets
in transactions permitted under Section 8.06 hereof).
------------
7.18 NEW SUBSIDIARIES.
----------------
(a) Subject to subsection (c) below, not later than forty-five (45)
Business Days following the acquisition or creation of any Material Subsidiary
(other than a Foreign Subsidiary), or upon any previously existing Person
becoming a Material Subsidiary (other than a Foreign Subsidiary), cause to be
delivered to the Agent for the benefit of the Lenders each of the following:
(i) a Guarantor Joinder Agreement executed by such Subsidiary, with
appropriate insertions of identifying information and such other changes to
which the Agent may consent in its discretion;
(ii) an opinion of counsel to such Subsidiary dated as of the date of
delivery of the Guarantor Joinder Agreement provided in the foregoing
clause (i) and addressed to the Agent and the Lenders, in form and
substance substantially similar to the opinions of counsel to the
Guarantors delivered on the Closing Date to the Lenders pursuant to Section
-------
5.01 hereof; and
----
(iii) current copies of the charter or other organizational documents
and bylaws, if any, of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors (or other comparable group of individuals performing a similar
function), or appropriate committees thereof (and, if required by such
charter or other organizational documents, bylaws or by applicable laws, of
the shareholders) of such Subsidiary authorizing the actions and the
execution and delivery of documents described in clause (i) of this Section
-------
7.18 and evidence satisfactory to the Agent (confirmation of the receipt of
----
which will be provided by the Agent to the Lenders) that such Subsidiary is
Solvent as of such date and after giving effect to the Guaranty.
(b) Subject to subsection (c) below, not later than forty-five (45)
Business Days following the acquisition or creation of a Foreign Subsidiary
which is a Material Subsidiary, or upon any
58
<PAGE>
previously existing Person becoming a Foreign Subsidiary which is a Material
Subsidiary, cause to be delivered to the Agent for the benefit of the Lenders
each of the following:
(i) a pledge agreement (the "Pledge Agreement") to be entered into by
the Borrower or Subsidiary owning any or all of the capital stock or other
ownership interest of such Foreign Subsidiary (the "Pledgor") in form and
substance acceptable to the Agent pledging 65% of all such capital stock or
ownership interests (the "Pledged Stock");
(ii) the certificates evidencing the Pledged Stock together with duly
executed stock powers or powers of assignment in blank affixed thereto;
(iii) an opinion of counsel to the Pledgor dated as of the date of
delivery of the Pledge Agreement provided in the foregoing clause (i) and
addressed to the Agent and the Lenders as to matters regarding the
enforceability of such Pledge Agreement and the status of such Pledged
Stock in form and substance acceptable to the Agent; and
(iv) the items referred to in (a)(iii) above with respect to the
Pledgor.
(c) This Section shall be of no further force or effect if the Guaranty has
been terminated in accordance with Section 11.20 hereof.
-------------
59
<PAGE>
ARTICLE VIII
NEGATIVE COVENANTS
------------------
Until this Agreement has been terminated in accordance with the terms
hereof, unless the Required Lenders shall otherwise consent in writing, the
Borrower will not, nor will it permit any Subsidiary to:
8.01 CONSOLIDATED NET WORTH. Permit Consolidated Net Worth at any time
----------------------
to be less than (A) the amount equal to ninety percent (90%) of the Borrower's
Consolidated Net Worth as of January 31, 1998 after completion of the Carson
Acquisition plus (B) an amount equal to one hundred percent (100%) of the Net
----
Proceeds of each sale of capital stock or other equity interest (including those
instruments and securities exchangeable, convertible or exercisable into capital
stock or other equity interests at such time as such instruments are
recognizable in Consolidated Net Worth in accordance with GAAP) in the Borrower
or any Subsidiary after January 31, 1998 plus (C) an amount equal to the sum of
----
fifty percent (50%) of Consolidated Net Income of the Borrower and its
Subsidiaries (without deduction for any negative Consolidated Net Income) for
each full fiscal quarter ending after January 31, 1998.
8.02 CONSOLIDATED FIXED CHARGE RATIO. Permit, at any time during any
-------------------------------
Four-Quarter Period of the Borrower, the Consolidated Fixed Charge Ratio for
such Four-Quarter Period to be equal to or less than 1.50 to 1.00.
8.03 CONSOLIDATED FUNDED TOTAL INDEBTEDNESS TO CONSOLIDATED EBITDA.
-------------------------------------------------------------
Permit at any time the ratio of Consolidated Funded Total Indebtedness to
Consolidated EBITDA for the Four-Quarter Period most recently ended to be
greater than 3.50 to 1.00.
8.04 INDEBTEDNESS. (a) Incur, create, assume or permit to exist any
------------
Indebtedness, howsoever evidenced, except
(i) All Indebtedness existing as of the date hereof (including
Indebtedness of Carson as of the date hereof, other than Indebtedness
incurred in anticipation of its combination with the Borrower) and set
forth in Schedule 8.04 attached hereto and incorporated herein by reference
-------------
and any extension, renewal or refinancing thereof that does not increase
the principal amount thereof from that existing immediately prior to such
extension, renewal or refinancing; and that does not result in an interest
rate which is greater than the market rate generally available to companies
similarly situated to the Borrower for similar transactions; provided, none
--------
of the instruments and agreements evidencing or governing such Indebtedness
(including extensions, renewals and refinancings thereof) shall be amended,
modified or supplemented after the Closing Date (nor shall any new or other
documents be entered into which are effective) to change any terms of
repayment, subordination, restrictions against incurring Liens or
Indebtedness, rights of conversion, put or exchange, mandatory prepayment,
reduction in commitment or addition of or adverse change in any borrowing
base with respect to such Indebtedness from such terms and rights as in
effect on the Closing Date unless such amendments, modifications or
supplements (or
60
<PAGE>
new or other documents) would not reasonably be expected to
have an adverse effect on the Borrower, or its creditworthiness with
respect to its Obligations; provided further, however, the Borrower shall
-------- -------
be entitled to refinance the principal amount of the Indebtedness which was
outstanding under the Junior Subordinated Debentures and the Parisian
Senior Subordinated Notes as of January 1, 1998 without regard to the above
described limitations on refinancings provided that in each case (i) such
refinancing is completed prior to February 2, 1999 and (ii) such refinanced
---
Indebtedness does not have a scheduled maturity date (or any put right,
mandatory call or similar mandatory repayment option exercisable at the
discretion of the holder thereof) earlier than the date which is one
hundred (100) days following the Stated Termination Date;
(ii) Indebtedness owing to the Agent or any Lenders in connection
with this Agreement, any Note or other Loan Document;
(iii) Indebtedness consisting of Rate Hedging Obligations permitted
under Section 8.13 hereof;
------------
(iv) The endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(v) Indebtedness incurred directly by the Borrower or any Subsidiary
exclusively to finance machinery, equipment and other fixed assets
purchased after the Closing Date and Indebtedness incurred after the
Closing Date and secured by the Borrower's or any Subsidiary's real
property (including without limitation, Indebtedness secured in connection
with any tax retention operating leases and synthetic leases), provided
--------
that such Indebtedness (i) is secured, if at all, solely by a Lien
permitted in accordance with Sections 8.05(iii) or (vii) hereof, (ii) shall
---------------------------
not be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing and (iii) does not in
the aggregate for the Borrower and all Subsidiaries exceed the principal
amount of $80,000,000 incurred during any consecutive twelve month period;
(vi) Indebtedness of any Subsidiary owing to the Borrower or a
Guarantor and Indebtedness of the Borrower owing to a Guarantor;
(vii) Additional Indebtedness, including without limitation
Indebtedness related to commercial and documentary letters of credit,
standby letters of credit, or otherwise, in the aggregate amount
outstanding of the Borrower and all Subsidiaries at any time (as determined
by the face amount of such obligations where applicable) not to exceed
fifteen percent (15%) of Consolidated Total Assets (calculated as of the
most recent fiscal period with respect to which the Agent shall have
received the Required Financial Information); and
(viii) Any guaranty of Indebtedness of the Borrower or any Guarantor
which is permitted to be incurred pursuant to this Section 8.04.
------------
61
<PAGE>
Notwithstanding the foregoing, neither the Borrower nor any of its Subsidiaries
shall incur or allow to exist any Indebtedness which qualifies as Significant
Senior Indebtedness, Parent Senior Indebtedness or Significant Parent Senior
Indebtedness under the Parisian Indenture unless each lender or creditor of such
Significant Senior Indebtedness, Parent Senior Indebtedness or Significant
Parent Senior Indebtedness, as applicable, agrees in the instrument creating,
evidencing or governing such Significant Senior Indebtedness, Parent Senior
Indebtedness or Significant Parent Senior Indebtedness, as applicable, not to
deliver any notice under either Section 10.2(b)(ii)(B) or Section 14.2(b)(ii)(B)
of the Parisian Indenture without the prior written consent of the Agent and
acknowledges in such instrument that the Lenders are relying on, are third-party
beneficiaries of, and may directly enforce, such agreement.
(b) Permit at any time the amount of Indebtedness of all Subsidiaries
(excluding Securitization Subsidiaries) in the aggregate to exceed ten percent
(10%) of Consolidated Net Worth (calculated as of the most recent fiscal period
with respect to which the Agent shall have received the Required Financial
Information); provided, in the event the Borrower achieves an Investment Grade
--------
Rating and the release of the Guaranty pursuant to Section 11.20 within twelve
-------------
(12) months of the Closing Date, such permitted aggregate amount of Indebtedness
of all Subsidiaries (excluding Securitization Subsidiaries) shall not in the
aggregate exceed fifteen percent (15%) of Consolidated Net Worth (calculated as
described above) from such date until the date one year following the Closing
Date (after which time the applicable percentage shall again be ten percent
(10%)); provided further, prior to the Borrower's achievement of an Investment
-------- -------
Grade Rating and the release of the Guaranty pursuant to Section 11.20, this
-------------
limitation shall only apply to Subsidiaries (other than Securitization
Subsidiaries) which are not Guarantors.
8.05 LIENS. Incur, create or permit to exist any Lien with respect to
-----
any property or assets now owned or hereafter acquired by the Borrower or any of
its Subsidiaries, other than
(i) Liens existing as of the date hereof and as set forth in Schedule
--------
6.01(g) attached hereto;
-------
(ii) Liens imposed by law for taxes, assessments or charges of any
Governmental Authority for claims not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with Generally Accepted Accounting
Principles;
(iii) Liens in respect of purchase money Indebtedness in connection
with the acquisition of certain property permitted to be incurred pursuant
to Section 8.04(v) hereof; provided that (a) the original principal balance
--------------- --------
of the Indebtedness secured by such Lien constitutes not less than 75% and
not more than 100% of the purchase price of the property acquired and (b)
such Lien extends only to the property acquired with the proceeds of the
indebtedness so secured;
(iv) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law or created in the
ordinary course of business and
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in existence less than 120 days from the date of creation thereof for
amounts not yet due or which are being contested in good faith by
appropriate proceedings diligently conducted and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with Generally Accepted Accounting Principles;
(v) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other
types of social security benefits or to secure the performance of tenders,
bids, leases, contracts (other than for the repayment of Indebtedness),
statutory obligations and other similar obligations or arising as a result
of progress payments under government contracts;
(vi) easements (including, without limitation, reciprocal easement
agreements and utility agreements), rights-of-way, covenants, consents,
reservations, encroachments, variations and zoning and other restrictions,
charges or encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or any
Subsidiary and which do not materially detract from the value of the
property to which they attach or materially impair the use thereof by the
Borrower or any Subsidiary;
(vii) Liens on real property securing Indebtedness permitted under
Section 8.04(v) hereof; provided, however, that the real property securing
--------------- -------- -------
such Indebtedness permitted under Section 8.04(v) hereof, if such
---------------
Indebtedness is in a principal amount of $10,000,000 or more, must be
appraised in connection with the incurrence of such Indebtedness and such
appraisal value shall not be less than an amount equal to 133% of the
principal amount of such Indebtedness; and
(viii) Liens on specific items of inventory of the Borrower or any
Subsidiary granted to secure reimbursement obligations incurred with
respect to documentary letters of credit issued in connection with the
purchase of such inventory; provided such liens at all times remain
-------
unperfected and no such lien attaches to inventory not acquired with the
credit support of such documentary letter of credit.
8.06 TRANSFER OF ASSETS. Other than as permitted in Section 8.08 hereof,
------------------ ------------
sell, lease, transfer or otherwise dispose of any assets (including without
limitation capital stock or similar ownership interests transferred by way of
merger or other consolidation) of the Borrower or any Subsidiary during any
Fiscal Year (other than assets sold in the ordinary course of business, accounts
receivable transferred to a Securitization Subsidiary and assets sold with
respect to which the Net Proceeds are applied within 180 days of receipt thereof
to make Permitted Acquisitions or to acquire, construct or improve properties or
capital assets, in each case, to be used in the same line of business being
conducted by the Borrower or its Subsidiaries at such time) which have an
aggregate book value in excess of fifteen percent (15%) of the book value of the
Consolidated Total Assets as at the last day of the immediately preceding Fiscal
Year; provided, however, such determination shall be made on a noncumulative
-------- -------
basis, with the effect that the amount of assets not disposed of in one Fiscal
Year may not be carried forward and disposed of in a subsequent Fiscal Year.
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8.07 INVESTMENTS; ACQUISITIONS. Purchase, own, invest in or otherwise
-------------------------
acquire, directly or indirectly, any stock or other securities of, or all or
substantially all of the assets of, or make or permit to exist any interest
whatsoever in, any other Person or otherwise make any Acquisition or permit to
exist any loans or advances to any Person, except that Borrower and its
Subsidiaries may maintain investments or invest in:
(i) Eligible Securities;
(ii) investments existing as of the date hereof; such investments
having a book value equal to or greater than $250,000 are set forth in
Schedule 6.01(d) attached hereto;
----------------
(iii) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof in connection with accounts of financially
troubled Persons to the extent reasonably necessary in order to prevent or
limit loss;
(iv) loans and advances to and investments in Subsidiaries which are
Guarantors;
(v) loans and advances to its officers, directors and employees for
travel expenses incurred in the ordinary course of business without
limitation and for any other business purpose in an aggregate principal
amount at any time outstanding not to exceed $15,000,000;
(vi) other investments in an aggregate principal amount at any time
outstanding not to exceed 5% of Consolidated Net Worth;
(vii) Permitted Acquisitions and other mergers permitted in Section
-------
8.08 hereof; and
----
(viii) Securitization Subsidiaries of the Borrower in an aggregate
amount not to exceed 10% of Consolidated Net Worth; provided further,
-------- -------
investments made in Securitization Subsidiaries on or prior to the date
hereof and the retained earnings of Securitization Subsidiaries as of the
date hereof and subsequent thereto may be transferred between
Securitization Subsidiaries or between the Borrower and a Securitization
Subsidiary without limitation.
8.08 MERGER OR CONSOLIDATION. Consolidate with or merge into any other
-----------------------
Person, or permit any other Person to merge into it; provided, however, (i) any
Subsidiary of the Borrower may merge into or consolidate with the Borrower or
any Subsidiary wholly owned by the Borrower which is a Guarantor, (ii) any
Subsidiary may merge into another Person whereby such other Person is the
surviving corporation provided that (x) prior to the termination of the Guaranty
pursuant to Section 11.20, if such Subsidiary was a Material Subsidiary and such
-------------
other Person would not be a Material Subsidiary after giving effect to such
merger, such other Person complies with all the requirements of Section 7.18 as
------------
if it is a newly acquired Material Subsidiary and that such merger would be a
Permitted Acquisition but for the Subsidiary not being the surviving
corporation, and (y) following the termination of the Guaranty pursuant to
Section 11.20, the Borrower and its Subsidiaries shall
- -------------
64
<PAGE>
be in compliance with Section 8.06 immediately following such merger, (iii) in
------------
connection with any Permitted Acquisition, any Person may merge with the
Borrower or any Subsidiary wholly owned by the Borrower if the Borrower or such
wholly owned Subsidiary, as applicable, shall be the surviving corporation, and
(iv) any non-Material Subsidiary may merge into or consolidate with another non-
Material Subsidiary subject to compliance with all the requirements of Section
-------
7.18 (if then applicable) in the event that such combined entity shall
- ----
constitute a Material Subsidiary.
8.09 TRANSACTIONS WITH AFFILIATES. Other than transactions permitted
----------------------------
under Section 8.07 hereof, enter into any transaction (or series of related
------------
transactions) after the Closing Date, with, or for the benefit of, any Affiliate
of the Borrower or any officer or director of the Borrower or any Subsidiary
(each, an "Affiliate Transaction"), unless (i) (A) such Affiliate Transaction is
in the ordinary course of and pursuant to the reasonable requirements of the
Borrower's or any Subsidiary's business and is on terms that are no less
favorable to the Borrower or the Subsidiary, as the case may be, than those
which could have been obtained in a comparable transaction at such time from
Persons who do not have such a relationship and are engaged in same or similar
transactions in the ordinary course of their business and (B) with respect to
any Affiliate Transaction or series of Affiliate Transactions involving
aggregate payments or value equal to or greater than $5,000,000, the Borrower
shall have delivered a certificate of an Authorized Representative to the Agent
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with the preceding clause (i)(A) and, with respect to any
Affiliate Transaction or series of Affiliate Transactions involving aggregate
payments or value equal to or greater than $10,000,000, further certifying that
such Affiliate Transaction or series of Affiliate Transactions has been approved
by a majority of the Board of Directors of the Borrower, including a majority of
the disinterested directors of the Board of Directors of the Borrower or (ii)
such Affiliate Transaction is with a wholly owned Subsidiary (other than a
Foreign Subsidiary) of the Borrower.
8.10 BENEFIT PLANS. With respect to all employee pension benefit plans
-------------
maintained by the Borrower or any Subsidiary:
(i) terminate any of such employee pension benefit plans so as to
incur any material liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA or to any other Person exercising similar
duties and functions under any Foreign Benefit Law;
(ii) allow or suffer to exist any prohibited transaction involving
any of such employee pension benefit plans or any trust created thereunder
which would subject the Borrower or a Subsidiary to a material tax or
material penalty or other material liability (a) on prohibited transactions
imposed under Internal Revenue Code Section 4975 or ERISA or (b) under any
Foreign Benefit Law;
(iii) fail to pay to any such employee pension benefit plan any
material contribution which it is obligated to pay under the terms of such
plan;
(iv) allow or suffer to exist any material accumulated funding
deficiency, whether or not waived, with respect to any such employee
pension benefit plan;
65
<PAGE>
(v) allow or suffer to exist any occurrence of a reportable event or
any other event or condition, which presents a material risk of termination
by the Pension Benefit Guaranty Corporation, or to any other Person
exercising similar duties and functions under any Foreign Benefit Law, of
any such employee pension benefit plan that is a Single Employer Plan,
which termination could result in any material liability (a) to the Pension
Benefit Guaranty Corporation or (b) under any Foreign Benefit Law; or
(vi) incur any material withdrawal liability with respect to any
Multi-employer Plan.
8.11 FISCAL YEAR. Change its Fiscal Year.
-----------
8.12 DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
----------------
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into the Borrower permitted
under Section 8.08 or in connection with the dissolution of wholly-owned
------------
Subsidiaries.
8.13 RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
------------------------
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except in connection with the management of interest rate
fluctuation risks of the Borrower and its Subsidiaries and in no event shall any
Rate Hedging Obligation be incurred for speculative purposes.
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<PAGE>
ARTICLE IX
EVENTS OF DEFAULT AND ACCELERATION
----------------------------------
9.01 EVENTS OF DEFAULT. If any one or more of the following events
-----------------
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan or Reimbursement Obligation, when and as the same shall be
due and payable whether pursuant to any provision of Article II or Article III
---------- -----------
hereof, at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any amount
of interest on any Loan or of any fees for other amounts payable to the Lenders,
the Agent, the Swing Line Lender or the Issuing Bank under the Loan Documents on
the date on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance of any
covenant set forth in Sections 7.07, 7.10, 7.18 or Article VIII hereof; or
------------------------- ------------
(d) if a default shall be made in the performance or observance of, or
shall occur under, any covenant, agreement or provision contained in this
Agreement or the Notes (other than as described in clauses (a), (b) or (c)
above) and such default shall continue for thirty (30) or more days after the
earlier of receipt of notice of such default by the Authorized Representative
from the Agent or the Borrower becomes aware of such default, or if a default
shall be made in the performance or observance of, or shall occur under, any
covenant, agreement or provision contained in any of the other Loan Documents
(beyond any applicable grace period, if any, contained therein) or in any
instrument or document evidencing or creating any obligation, guaranty, or Lien
in favor of the Agent or the Lenders or delivered to the Agent or the Lenders in
connection with or pursuant to this Agreement or any of the Obligations, or if
any Loan Document ceases to be in full force and effect (other than in
accordance with its terms in the absence of default or by reason of any action
by the Agent or any Lender), or if without the written consent of the Agent and
the Lenders, this Agreement or any other Loan Document shall be disaffirmed or
shall terminate, be terminable or be terminated or become void or unenforceable
for any reason whatsoever (other than in accordance with its terms in the
absence of default or by reason of any action by the Agent or any Lender); or
(e) if a default shall occur, which is not waived, (i) in the payment of
any principal, interest, premium or other amounts with respect to any
Indebtedness for Money Borrowed (other than the Loans) or Rate Hedging
Obligations of the Borrower or of any Subsidiary which Indebtedness is in an
amount (which amount for Rate Hedging Obligations shall be equal to the market
exposure thereunder on the date of default) not less than $10,000,000 in the
aggregate outstanding and includes without limitation any of the Consolidated
Subordinated Debt and the Senior Notes, and such default shall continue for more
than the period of grace, if any, therein
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<PAGE>
specified or (ii) in the performance, observance or fulfillment of any term or
covenant contained in any agreement or instrument under or pursuant to which any
such Indebtedness for Money Borrowed, including without limitation any of the
Consolidated Subordinated Debt and the Senior Notes or Rate Hedging Obligations,
may have been issued, created, assumed, guaranteed or secured by the Borrower or
any Subsidiary, and as a result of such default the holder of any such
Indebtedness, including without limitation any of the Consolidated Subordinated
Debt and the Senior Notes, may accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact by the
Borrower or any Guarantor contained herein or any other Loan Document or in any
writing, certificate, report or statement at any time furnished to the Agent or
any Lender by or on behalf of the Borrower or any Guarantor pursuant to or in
connection with this Agreement or the other Loan Documents, or otherwise, shall
be false or misleading in any material respect when given or made or deemed
given or made; or
(g) if the Borrower or any Material Subsidiary (or any Securitization
Subsidiary) shall be unable to pay its debts generally as they become due; file
a petition to take advantage of any insolvency, reorganization, bankruptcy,
receivership or similar law, domestic or foreign; make an assignment for the
benefit of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole or any
substantial part of its property; file a petition or answer seeking
reorganization or arrangement or similar relief under the federal bankruptcy
laws or any other applicable law or statute, federal, state or foreign; or
(h) if a court of competent jurisdiction shall enter an order, judgment or
decree appointing a custodian, receiver, trustee, liquidator or conservator of
the Borrower or any Material Subsidiary (or any Securitization Subsidiary) or of
the whole or any substantial part of its properties and such order, judgment or
decree continues unstayed and in effect for a period of sixty (60) days, or
approve a petition filed against the Borrower or any Material Subsidiary (or any
Securitization Subsidiary) seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or statute
of the United States of America or any state or foreign country, province or
other political subdivision, which petition is not dismissed within sixty (60)
days; or if, under the provisions of any other law for the relief or aid of
debtors, a court of competent jurisdiction shall assume custody or control of
the Borrower or any Material Subsidiary (or any Securitization Subsidiary) or
of the whole or any substantial part of its properties, which control is not
relinquished within sixty (60) days; or if there is commenced against the
Borrower or any Material Subsidiary (or any Securitization Subsidiary) any
proceeding or petition seeking reorganization, arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state or foreign country, province or other
political subdivision which proceeding or petition remains undismissed for a
period of sixty (60) days; or if the Borrower or any Material Subsidiary (or any
Securitization Subsidiary) takes any action to indicate its consent to or
approval of any such proceeding or petition; or
(i) if (i) any judgment where the amount not covered by insurance (or the
amount as to which the insurer denies liability) is in excess of $10,000,000 is
rendered against the Borrower or any Subsidiary, or (ii) there is any
attachment, injunction or execution against any of the Borrower's or
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<PAGE>
any Subsidiary's properties for any amount in excess of $1,000,000, and such
judgment, attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of sixty (60) days; or
(j) if the Borrower or any Material Subsidiary (or any Securitization
Subsidiary) shall, other than as permitted under Section 8.06 hereof or in the
------------
ordinary course of business (as determined by past practices), suspend (other
than for a period not to exceed twenty (20) days by reason of force majeure) all
or any part of its operations material to the conduct of the business of the
Borrower or such Material Subsidiary (or any Securitization Subsidiary), taken
as a whole; or
(k) if (i) the Borrower or any Subsidiary shall engage in any prohibited
transaction (as described in Section 8.10(ii) hereof), which is not subject to
----------------
a statutory or administrative exemption, involving any employee pension benefit
plan of the Borrower or any Subsidiary and thereby incur any material tax,
material penalty or other material liability, (ii) any material accumulated
funding deficiency (as referred to in Section 8.10(iv) hereof), whether or not
----------------
waived, shall exist with respect to any Single Employer Plan, (iii) a reportable
event (as referred to in Section 8.10(v) hereof) (other than a reportable event
---------------
for which the statutory notice requirement to the Pension Benefit Guaranty
Corporation has been waived by regulation) shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed to administer or to terminate, any Single Employer Plan, which
reportable event or institution or proceedings is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Single
Employer Plan for purposes of Title IV of ERISA, and in the case of such a
reportable event, the continuance of such reportable event shall be unremedied
for sixty (60) days after notice of such reportable event pursuant to Section
4043(a), (c) or (d) of ERISA is given, as the case may be, and shall result in
the incurrence of a material liability to any Governmental Authority (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, and such
termination results in a material liability of the Borrower or any Subsidiary to
such Single Employer Plan or the Pension Benefit Guaranty Corporation, or (v)
the Borrower or any Subsidiary shall withdraw from a Multi-employer Plan for
purposes of Title IV of ERISA, and, as a result of any such withdrawal, the
Borrower or any Subsidiary shall incur a material withdrawal liability to such
Multi-employer Plan; or
(l) if there shall occur any "Event of Default" as defined in any of the
Loan Documents; or
(m) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
(except for the Proffitt's Inc. 401(k) Retirement Plan) is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person will be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time or the occurrence of
an event or condition), directly or indirectly, of more than 20% of the total
voting power of the then outstanding voting capital stock of the Borrower;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
69
<PAGE>
(A) either or both of the following actions may be taken: (i)
the Agent may, and at the direction of the Required Lenders shall,
declare any obligation of the Lenders to make further Loans or issue
Letters of Credit terminated, whereupon the obligation of each Lender
to make further Loans or issue Letters of Credit, hereunder shall
terminate immediately, and (ii) the Agent shall at the direction of
the Required Lenders, at their option, declare by notice to the
Borrower any or all of the Obligations to be immediately due and
payable, and the same, including all interest accrued thereon and all
other obligations of the Borrower to the Agent and the Lenders, shall
forthwith become immediately due and payable without presentment,
demand, protest, notice or other formality of any kind, all of which
are hereby expressly waived, anything contained herein or in any
instrument evidencing the Obligations to the contrary notwithstanding;
provided, however, that notwithstanding the above, if there shall
-------- -------
occur an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to lend and issue Letters of Credit
hereunder shall automatically terminate and automatically any and all
of the Obligations shall be immediately due and payable without the
necessity of any action by the Agent or the Required Lenders or notice
by the Agent or the Lenders or to the Borrower or any other Person;
(B) The Borrower shall, upon demand of the Agent acting on the
direction of the Required Lenders, and automatically upon the
occurrence of an Event of Default under clause (g) or (h) above,
deposit cash with the Agent in an amount equal to the amount of any
outstanding Letters of Credit remaining undrawn, unpaid or at any time
that might become payable under the Letters of Credit, as collateral
security pursuant to the LC Account Agreement for the repayment of any
future drawings or payments under such Letters of Credit; and
(C) the Agent and the Lenders shall have all of the rights and
remedies available under the Loan Documents or under any applicable
law.
9.02 AGENT TO ACT. In case any one or more Events of Default shall occur
------------
and not have been waived, the Agent shall, at the direction of the Required
Lenders, proceed to protect and enforce their rights or remedies either by suit
in equity or by action at law, or both, whether for the specific performance of
any covenant, agreement or other provision contained herein or in any other Loan
Document, or to enforce the payment of the Obligations or any other legal or
equitable right or remedy.
9.03 CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
-----------------
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
9.04 NO WAIVER. No course of dealing between the Borrower and any Lender
---------
or the Agent or any failure or delay on the part of any Lender or the Agent in
exercising any rights or remedies
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<PAGE>
under any Loan Document or otherwise available to it shall operate as a waiver
of any rights or remedies and no single or partial exercise of any rights or
remedies shall operate as a waiver or preclude the exercise of any other rights
or remedies hereunder or of the same right or remedy on a future occasion.
9.05 ALLOCATION OF PROCEEDS. If an Event of Default has occurred and not
----------------------
been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder, in respect of
- ----------
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder shall be applied by the Agent in the following order:
(i) amounts due to the Agent, the Issuing Bank, the Swing Line Lender
and the Lenders pursuant to Sections 2.11, 3.02(f), 3.03(i), 11.06 and
------------------------------------------
11.11 hereof;
-----
(ii) amounts due to (A) the Issuing Bank pursuant to Sections 3.03(ii)
-----------------
and 3.04 hereof, and (B) to NationsBank, NMS and the Agent pursuant to
--------
Section 2.14 hereof;
------------
(iii) payments of interest on Loans and Reimbursement Obligations, to
be applied for the ratable benefit of the Lenders;
(iv) payments of principal on Loans and Reimbursement Obligations, to
be applied for the ratable benefit of the Lenders;
(v) payment of cash amounts to the Agent in respect of Outstanding
Letters of Credit pursuant to Section 9.01(B) hereof;
---------------
(vi) payment of Obligations owed a Lender or Lenders pursuant to Swap
Agreements on a pro rata basis according to amounts owed;
(vii) payments of all other amounts due under this Agreement, if any,
to be applied for the ratable benefit of the Lenders; and
(viii) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable law.
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ARTICLE X
THE AGENT
---------
10.01. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
-----------------------------------
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 10.05 and
-------------
the first sentence of Section 10.06 hereof shall include its affiliates and its
-------------
own and its affiliates' officers, directors, employees, agents): (a) shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and shall not be a trustee or fiduciary for any Lender; (b) shall not
be responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Loan
Document or any certificate or other document referred to or provided for in, or
received by any of them under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Loan Document,
or any other document referred to or provided for therein or for any failure by
any Loan Party or any other Person to perform any of its obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain, inquire into,
or verify the performance or observance of any covenants or agreements by any
Loan Party or the satisfaction of any condition or to inspect the property
(including the books and records) of any Loan Party or any of its Subsidiaries
or affiliates; (d) shall not be required to initiate or conduct any litigation
or collection proceedings under any Loan Document; and (e) shall not be
responsible for any action taken or omitted to be taken by it under or in
connection with any Loan Document, except for its own gross negligence or
willful misconduct. The Agent may employ agents and attorneys-in-fact and shall
not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
10.02. RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
-----------------
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telecopy) believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Loan Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 11.01 hereof. As to any matters not expressly provided for by this
- -------------
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that the Agent shall not be required to take any
-------- -------
action that exposes the Agent to personal liability or that is contrary to any
Loan Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
10.03. DEFAULTS. The Agent shall not be deemed to have knowledge or
--------
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a
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Lender or the Borrower specifying such Default or Event of Default and stating
that such notice is a "Notice of Default". In the event that the Agent receives
such a notice of the occurrence of a Default or Event of Default, the Agent
shall give prompt notice thereof to the Lenders. The Agent shall (subject to
Section 10.02 hereof) take such action with respect to such Default or Event of
- -------------
Default as shall reasonably be directed by the Required Lenders, provided that,
-------- ----
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interest of the Lenders.
10.04. RIGHTS AS LENDER. With respect to its Commitment and the Loans
----------------
made by it, NationsBank (and any successor acting as Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. NationsBank (and any successor
acting as Agent) and its affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with any Loan Party or any of its Subsidiaries or affiliates as if it
were not acting as Agent, and NationsBank (and any successor acting as Agent)
and its affiliates may accept fees and other consideration from any Loan Party
or any of its Subsidiaries or affiliates for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
10.05. INDEMNIFICATION. The Lenders agree to indemnify the Agent (to
---------------
the extent not reimbursed under Section 11.11 hereof, but without limiting the
-------------
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document provided that no Lender shall be liable for
--------
any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs or expenses payable by the Borrower under Section
-------
11.11, to the extent that the Agent is not promptly reimbursed for such costs
- -----
and expenses by the Borrower. The agreements contained in this Section 10.05
-------------
shall survive payment in full of the Loans, the Obligations and all other
amounts payable under this Agreement.
10.06. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that
---------------------------------------
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Loan Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have
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any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any Loan
Party or any of its Subsidiaries or affiliates that may come into the possession
of the Agent or any of its affiliates.
10.07. RESIGNATION OF AGENT. The Agent may resign at any time by giving
--------------------
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $100,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article X shall continue in effect for its benefit
---------
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
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ARTICLE XI
MISCELLANEOUS
-------------
11.01 ASSIGNMENTS AND PARTICIPATIONS.
------------------------------
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Loans, its Note, and its Revolving Credit
Commitment); provided, however, that
-------- -------
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, any
such partial assignment shall be in an amount at least equal to $10,000,000 or
an integral multiple of $5,000,000 in excess thereof;
(iii) except in the case of an assignment of all of a Lender's rights
and obligations under this Agreement, no Lender shall make any assignment that
would result in its Revolving Credit Commitment being less than $15,000,000;
(iv) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its rights and obligations under this
Agreement and its Note; and
(v) the parties to such assignment shall execute and deliver to the
Agent for its acceptance an Assignment and Acceptance, together with any Note
subject to such assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement; provided, the
--------
assigning Lender shall be entitled to reimbursement from the Borrower with
respect to amounts payable pursuant to Sections 4.01, 4.05, 4.06, 11.06 and
------------------------------------
11.11 in connection with events prior to such assignment; provided further, to
- ----- ----------------
the extent the Borrower makes any such payments to the assigning Lender, the
Borrower shall not be required to also pay the assignee such amounts. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Agent certification as to exemption
from deduction or withholding of Taxes in accordance with Section 4.06.
------------
(b) The Agent shall maintain at its Principal Office a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be
--------
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conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i) accept
---------
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in a
portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Commitment or its Loans); provided,
--------
however, that (i) such Lender's obligations under this Agreement shall remain
- -------
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions contained in Article
IV and the right of setoff contained in Section 11.04, and (iv) the Borrower
-------------
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to its
Loans and its Note and to approve any amendment, modification, or waiver of any
provision of this Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is payable
on such Loans or Note, extending any scheduled principal payment date or date
fixed for the payment of interest on such Loans or Note, or extending its
Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time assign and pledge all or any portion of its Loans and its
Note to any Federal Reserve Bank as collateral security pursuant to Regulation A
and any Operating Circular issued by such Federal Reserve Bank. No such
assignment shall release the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the Borrower or any
of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.03 hereof.
-------------
11.02 NOTICES. All notices shall be in writing, except as to
-------
telephonic notices expressly permitted or required herein, and written notices
shall be delivered by hand delivery, telefacsimile, overnight courier or
certified or registered mail. Any notice shall be conclusively deemed to have
been received by any party hereto and be effective on the day on which delivered
to such party (against (except as to telephonic or telefacsimile notice) receipt
therefor) at the address set forth below or such other address as such party
shall specify to the other parties in writing:
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<PAGE>
(a) if to the Borrower:
Proffitt's, Inc.
750 Lakeshore Parkway
Birmingham, AL 35211
Attention: Treasurer
Telephone: (205) 940-4732
Telefacsimile: (205) 940-4098
with a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30909-3424
Attention: Paul Cushing
Telephone: (404) 881-7000
Telefacsimile: (404) 881-7777
(b) if to the Agent or to NationsBank in its capacity as the initial
Issuing Bank:
NationsBank, N.A.
Independence Center, 15th Floor
101 North Tryon Street
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Mr. Ken Deffendall, Agency Services
Telephone: (704) 388-6482
Telefacsimile: (704) 386-9923
with a copy to:
NationsBank, N.A.
600 Peachtree Street, N.E., 21st Floor
Atlanta, Georgia 30308-2213
Attention: Nancy Goldman
Telephone: 404-607-5539
Telefacsimile: 404-607-6467
(c) if to the Lenders:
At the addresses set forth on the signature pages hereof and on
the signature page of each Assignment and Acceptance.
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<PAGE>
11.03 CONFIDENTIALITY. The Agent and each Lender (each, a "Lending
---------------
Party") agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Agreement and that is marked
confidential; provided that nothing herein shall prevent any Lending Party from
--------
disclosing such information (a) to any other Lending Party or any affiliate of
any Lending Party, or any officer, director, employee, agent or advisor of any
Lending Party or any affiliate of any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or demand of any
regulatory agency or authority, (f) that is or becomes available to the public
or that is or becomes available to any Lending Party other than as a result of a
disclosure by any Lending Party prohibited by this Agreement, (g) in connection
with any litigation to which such Lending Party or any of its affiliates may be
a party, (h) to the extent necessary in connection with the exercise of any
remedy under this Agreement or any other Loan Document, and (i) subject to
provisions substantially similar to those contained in this Section, to any
actual or proposed participant or assignee.
11.04 RIGHT OF SETOFF; ADJUSTMENTS.
----------------------------
(a) Upon the occurrence and during the continuance of any Event of
Default, each Lender (and each of its affiliates) is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender (or any of its affiliates) to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender, irrespective of
whether such Lender shall have made any demand under this Agreement or such
Note. Each Lender agrees promptly to notify the Borrower after any such setoff
and application made by such Lender; provided, however, that the failure to give
-------- -------
such notice shall not affect the validity of such setoff and application. The
rights of each Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) that such
Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
-----------------
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
setoff, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
-------- -------
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this Section 11.04 may, to
-------------
the fullest extent permitted by law, exercise all of its rights of payment
(including the right of setoff) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
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11.05 SURVIVAL. All covenants, agreements, representations and
--------
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of the Obligations remain outstanding or any Lender has
any commitment hereunder. Whenever in this Agreement, any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of the Borrower which are contained in this Agreement, the Notes
and the other Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
11.06 EXPENSES. The Borrower agrees to pay on demand all reasonable
--------
costs and expenses of the Agent in connection with the preparation, execution,
delivery, administration, modification, waiver and amendment of this Agreement,
the other Loan Documents, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under the Loan Documents. The Borrower further
agrees to pay on demand all reasonable costs and expenses of the Agent and of
each of the Lenders, if any (including, without limitation, reasonable
attorneys' fees actually incurred and expenses and the cost of internal
counsel), in connection with the enforcement, workout or preservation of any
rights under this Agreement and other Loan Documents (whether through
negotiations, legal proceedings, or otherwise) and the other documents to be
delivered hereunder.
11.07 AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
----------------------
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article X or the rights or duties of the Agent are affected thereby, by
---------
the Agent); provided that no such amendment or waiver shall, unless signed by
--------
all the Lenders, (i) increase the Revolving Credit Commitments of the Lenders,
(ii) reduce the principal of, or rate of interest on, any Loan (other than a
Swing Line Loan) or any fees or other amounts payable hereunder, including
without limitation accrued interest, (iii) postpone any date fixed for the
payment of any scheduled installment of principal of or interest on any Loan or
any fees or other amounts payable hereunder or for termination of any Revolving
Credit Commitment, (iv) change the percentage of the Revolving Credit
Commitments or of the unpaid principal amount of the Notes, or the number of
Lenders, which shall be required for the Lenders or any of them to take any
action under this Section or any other provision of this Agreement or (v)
release any Guarantor.
11.08 COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.09 TERMINATION. At such times as (a) all of the Revolving Credit
-----------
Commitments have been terminated, (b) none of the Lenders is obligated any
longer under this Agreement to make any Loans, (c) the Issuing Bank is no longer
obligated under this Agreement to issue any Letters of Credit, (d) the Swing
Line Lender is no longer obligated under this Agreement to make Swing Line
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<PAGE>
Loans, (e) no Letters of Credit remain issued and outstanding and (f) all
Obligations (other than obligations which survive as provided in the following
two sentences) have been paid and satisfied in full, this Agreement shall
terminate. Notwithstanding the foregoing, the termination of this Agreement
shall not affect any rights of the Borrower, the Lenders or the Agent or any
obligation of the Borrower, the Lenders or the Agent, arising prior to the
effective date of such termination, and all representations, warranties,
covenants, waivers and agreements contained herein shall continue until this
Agreement is so terminated, unless continuing thereafter as otherwise provided
herein. Without limitation of the foregoing, the provisions of Sections 4.05,
--------------
4.06, 10.05, 11.06 and 11.11 shall survive the termination of this Agreement and
- ----------------------------
the Loan Documents. Notwithstanding the foregoing, if after receipt of any
payment pursuant to the Loan Documents of all or any part of the Obligations,
any Lender is for any reason compelled to surrender such payment to any Person
because such payment is determined to be void or voidable as a preference,
impermissible setoff, a diversion of trust funds or for any other reason, this
Agreement shall continue in full force and the Borrower shall be liable to, and
shall indemnify and hold such Lender harmless for, the amount of such payment
surrendered until such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Lenders in
reliance upon such payment, and any such contrary action so taken shall be
without prejudice to the Lenders' rights under this Agreement and shall be
deemed to have been conditioned upon such payment having become final and
irrevocable.
11.10 GOVERNING LAW. ALL DOCUMENTS EXECUTED PURSUANT TO THE
-------------
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, THIS AGREEMENT
AND EACH OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND
JUDICIAL DECISIONS OF THE STATE OF GEORGIA. THE BORROWER HEREBY SUBMITS TO THE
JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF GEORGIA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR FOR THE PURPOSES OF COLLECTION.
11.11 INDEMNIFICATION. (a) The Borrower agrees to indemnify and hold
---------------
harmless the Agent and each Lender and each of their affiliates and their
respective officers, directors, employees, agents, and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
-----------------
liabilities, costs, and expenses (including, without limitation, assessment and
cleanup costs and reasonable attorneys', consultants or other expert fees,
expenses and disbursements ) that are incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in connection with or
relating to or by reason of (including, without limitation, in connection with
any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the transactions contemplated
herein, the actual or proposed use of the proceeds of the Loans, the violation
of any Environmental Law by the Borrower or any Subsidiary or with respect to
any property owned, operated or leased by the Borrower or any Subsidiary or the
handling, storage, transportation, treatment, emission, release, discharge or
disposal of any Hazardous Material by, on behalf or in respect of the Borrower
or any Subsidiary or on or with respect to property owned or leased or operated
by the Borrower or any Subsidiary, except to the extent (i) such claim, damage,
loss, liability, cost, or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct or (ii) relating to actions or
proceedings between or among the Indemnified Parties and the Lenders not arising
from any action or inaction by the Borrower or any Subsidiary, or (iii)
resulting from any claim
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brought by the Borrower against any Lender for failure to fund under the
Revolving Credit Facility in accordance with this Agreement in which the
Borrower is the prevailing party. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 11.11 applies, such
-------------
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. If and to the extent that the foregoing undertaking may
be unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law. The Borrower further
agrees not to assert any claim against the Agent, any Lender, any of their
affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans. Without prejudice to
the survival of any other agreement of the Borrower hereunder, the agreements
and obligations of the Borrower contained in this Section 11.11 shall survive
-------------
the payment in full of the Loans, the Obligations and all other amounts payable
under this Agreement.
(b) If a claim is to be made by a party entitled to indemnification under
this Section 11.11 against the Borrower, the Indemnified Party shall give
-------------
written notice to the Borrower promptly after the Indemnified Party receives
actual notice of any claim, action, suit, loss, cost, liability, damage or
expense incurred or instituted for which the indemnification is sought. If
requested by Borrower in writing, and so long as no Default or Event of Default
shall have occurred and be continuing, such Indemnified Party shall contest at
the expense of the Borrower the validity, applicability and/or amount of such
suit, action, or cause of action to the extent such contest may be conducted in
good faith on legally supportable grounds. If any lawsuit or enforcement action
is filed against any Indemnified Party, written notice thereof shall be given to
the Borrower as soon as practicable (and in any event within 20 days after the
service of the citation or summons). Notwithstanding the foregoing, the failure
so to notify the Borrower as provided in this Section will relieve the Borrower
from liability hereunder only if and to the extent that such failure results in
the forfeiture by the Borrower of any substantive rights or defenses. The
Indemnified Party shall control the defense and investigation of such lawsuit or
action and to employ and engage counsel of its own choice to handle and defend
the same, at the Borrower's cost, risk and expense; provided, however, that the
-------- -------
Borrower may, at its own cost participate in the investigation, trial and
defense of such lawsuit or action and any appeal arising therefrom. If the
Borrower has acknowledged to the Indemnified Party its obligation to indemnify
hereunder, the Indemnified Party, so long as no Default or Event of Default
shall have occurred and be continuing, shall not settle such lawsuit or
enforcement action without the prior written consent of the Borrower and, if the
Borrower has not so acknowledged its obligation, the Indemnified Party shall not
settle such lawsuit or enforcement action without giving twenty (20) days' prior
written notice of such settlement and its terms to the Borrower.
11.12 HEADINGS AND REFERENCES. The headings of the Articles and
-----------------------
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
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particular Section or provisions hereof, unless so expressly specified. As used
herein, the singular shall include the plural, and the masculine shall include
the feminine or a neutral gender, and vice versa, whenever the context requires.
11.13 SEVERABILITY. If any provision of this Agreement or the other
------------
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
11.14 ENTIRE AGREEMENT. This Agreement, together with the other Loan
----------------
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.15 AGREEMENT CONTROLS. In the event that any term of any of the
------------------
Loan Documents other than this Agreement conflicts with any term of this
Agreement, the terms and provisions of this Agreement shall control.
11.16 USURY SAVINGS CLAUSE. Notwithstanding any other provision
--------------------
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under Georgia law, shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if and when the Loans made hereunder are
repaid in full the total interest due hereunder (taking into account the
increase provided for above) is less than the total amount of interest which
would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect, then to the extent permitted by law,
the Borrower shall pay to the Agent an amount equal to the difference between
the amount of interest paid and the amount of interest which would have been
paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding
the foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum non-usurious interest rate than applicable laws now allow.
82
<PAGE>
11.17 STATUS OF DEBT. Each party hereto agrees that the Revolving
--------------
Credit Facility, the Letter of Credit Facility, all Swing Line Loans and all
Outstandings are hereby specifically designated as "Significant Senior
Indebtedness," "Parent Senior Indebtedness" and as "Significant Parent Senior
Indebtedness" for all purposes of the Parisian Indenture and are to be afforded
all rights of, and terms applicable to, Significant Senior Indebtedness, Parent
Senior Indebtedness and Significant Parent Senior Indebtedness under the terms
of the Parisian Indenture, including without limitation subordination of the
Parisian Senior Subordinated Notes and of the Parent Guarantee (as defined in
the Parisian Indenture).
11.18 WAIVER OF JURY TRIAL. EXCEPT AS PROHIBITED BY LAW, EACH PARTY
--------------------
HERETO HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS.
11.19 REMOVAL OF LENDERS. If (a) a Lender requests compensation
------------------
pursuant to Sections 4.01(a) or (b) or Section 4.06 and the Required Lenders
----------------------- ------------
are not also doing the same, (b) the obligation of a Lender to make Eurodollar
Loans or to Continue, or to Convert Base Rate Loans into, Eurodollar Loans shall
be suspended pursuant to Section 4.01(a) or Section 4.03 but the obligation of
--------------- ------------
the Required Lenders shall not have been suspended under such Sections, or (c)
any Lender refuses or otherwise fails to consent to any waiver, amendment or
other modification of any Loan Document which (i) requires the unanimous written
consent of all Lenders under Section 11.07 and (ii) has been approved in writing
-------------
by the Required Lenders, then, so long as there does not then exist any Default
or Event of Default, the Borrower may either (A) demand that such Lender (the
"Affected Lender"), and upon such demand the Affected Lender shall promptly,
assign its Commitment and all of its Loans to another Eligible Assignee
identified by the Borrower and willing to become a Lender subject to and in
accordance with the provisions of Section 11.01(a) for a purchase price equal to
----------------
the aggregate principal balance of Loans then owing to the Affected Lender plus
any accrued but unpaid interest thereon, accrued but unpaid fees owing to the
Affected Lender and any amounts owing the Affected Lender under Section 4.05, or
------------
(B) pay to the Affected Lender the aggregate principal balance of Loans then
owing to the Affected Lender plus any accrued but unpaid interest thereon,
accrued but unpaid fees owing to the Affected Lender and any amounts owing the
Affected Lender under Section 4.05, whereupon the Affected Lender shall no
------------
longer be a party hereto or have any rights or obligations hereunder or under
any of the other Loan Documents and the Total Revolving Credit Commitment shall
immediately and permanently be reduced by an amount equal to the amount of the
Affected Lender's Commitment. Each of the Agent and the Affected Lender shall
reasonably cooperate in effectuating the replacement of an Affected Lender under
this Section, but at no time shall the Agent or the Affected Lender be obligated
in any way whatsoever to initiate any such replacement. The exercise by the
Borrower of its rights under this Section shall be at the Borrower's sole cost
and expense.
11.20 GUARANTY TERMINATIONS. Upon and simultaneously with the
---------------------
satisfaction of each of the following conditions, the Guaranty shall
automatically terminate and be of no further force or effect and each Guarantor
thereunder shall be automatically, unconditionally and fully released and
discharged from all of its obligations and liabilities under or in respect
thereof without any action by
83
<PAGE>
the Borrower, any Subsidiary, the Agent (other than its written approval of the
release terms as contemplated in condition (b) below) or any Lender: (a) the
achievement of an Investment Grade Rating by the Borrower and (b) each
---
Subsidiary of the Borrower shall be released (simultaneously with the
effectiveness of this Section) on terms reasonably satisfactory to the Agent
from its guaranty obligations of any other Indebtedness for Money Borrowed
(other than such guarantees which together with all other Subsidiary
Indebtedness (after giving effect to the termination of the Guaranty) in the
aggregate do not exceed the maximum amount of Subsidiary Indebtedness then
permitted under Section 8.04(b) hereof). In addition, any Pledge Agreement
---------------
delivered pursuant to Section 7.18 shall automatically terminate and be of no
------------
further force or effect simultaneously with the termination of the Guaranty.
The Agent shall promptly deliver to the Borrower any stock certificates and
stock powers delivered to the Agent in connection with any such Pledge
Agreement.
11.21 TERMINATION OF EXISTING CREDIT AGREEMENT. The parties hereto
----------------------------------------
that are also parties to the Existing Credit Agreement acknowledge and agree
that as of the Closing Date the Existing Credit Agreement and all commitments
and obligations to lend thereunder are terminated, except for such terms and
provisions thereof which by their terms survive any such termination.
[SIGNATURES ON FOLLOWING PAGES.]
84
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
made, executed and delivered by their duly authorized officers as of the day and
year first above written.
PROFFITT'S, INC.
By: /s/ James S. Scully
-----------------------------------------
Title: Vice President and Treasurer
-----------------------------------------
ATTEST:
/s/ Douglas E. Coltharp
- -----------------------------
Executive Vice President and
- -----------------------------
Chief Financial Officer
NATIONSBANK, N.A., as Agent for the Lenders
By: /s/ Greg McCrery
-----------------------------------------
Title: ______________ Vice President
Signature page 1 of 23
<PAGE>
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLAND BRANCH,
as Co-Agent
By: /s/ Susan M. O'Connor
-------------------------------------
Title: Susan M. O'Connor
-------------------------------------
Director
By: /s/ Joel D. Makowsky
-------------------------------------
Title: Joel D. Makowsky
-------------------------------------
Assistant Vice President
Lending Office:
Deutsche Bank AG
New York Branch and/or Cayman Islands Branch
31 West 52nd Street
New York, New York 10019
Attention: Susan O'Connor
Director
or
Joel Makowsky
Assistant Vice President
Telephone: 212/469-8203 or 7896
Telefacsimile: 212/469-7936
Wire Transfer Instructions:
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
ABA No.: 026003780
Attention: Jeannine Pallarino
Reference: Proffitt's, Inc.
Signature page 2 of 23
<PAGE>
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK , as Co-Agent
By: /s/ Patricia Merritt
-------------------------------------
Title: PATRICIA MERRITT
-------------------------------------
VICE PRESIDENT
Lending Office:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260-0060
Attention: Patricia Merritt
Vice President
Telephone: 212/648-6744
Telefacsimile: 212/648-5336
Wire Transfer Instructions:
Morgan Guaranty Trust Company of New York
New York, New York
ABA# 021-000-238
For Credit to: Loan Department
A/C: 999-99-090
Attention: Corporate Processing - Mod 21
Reference: Proffitt's, Inc.
Signature page 3 of 23
<PAGE>
BANK OF AMERICA NT & SA, as Co-Agent
By: /s/ Sandra S. Ober
-----------------------------------------
Title: Managing Director
---------------------------------------
Address for Notices:
Bank of America, NT & SA
231 S. LaSalle Street
Chicago, Illinois 60697
Attention: Ms. Sandra Ober
Managing Director
Telephone: (312) 828-1307
Telefacsimile: (312) 828-6269
Lending Office:
Bank of America, NT & SA
231 S. LaSalle St.
Chicago, IL 60697
Telephone: (312) 828-6568
Telefacsimile: (312) 974-9626
Wire Transfer Instructions:
Bank of America, NT & SA
231 S. LaSalle Street
Chicago, Illinois 60697
ABA# 071000039
Account No.: 47-03421
Reference: Proffitt's, Inc.
Attention: Mary McNamee
Signature page 4 of 23
<PAGE>
NATIONSBANK, N.A.
By: /s/ Greg McCrery
-----------------------------------------
Title: _______ Vice President
Lending Office:
NationsBank, N.A.
Independence Center, 15th Floor
101 North Tryon Street
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Mr. Ken Deffendall,
Agency Services
Telephone: (704) 388-6482
Telefacsimile: (704) 386-9923
Wire Transfer Instructions:
NationsBank, N.A.
ABA#
Reference: Proffitt's, Inc.
Account No.:
Attention: Credit Services
Signature page 5 of 23
<PAGE>
NATIONAL CITY BANK, KENTUCKY
By: /s/ Kevin L. Anderson
-----------------------------------------
Title: Vice President
---------------------------------------
Lending Office:
National City Bank, Kentucky
101 South 5th Street
8th Floor
Louisville, Kentucky 40202
Attention: Mr. Kevin L. Anderson,
Vice President
Telephone: (502) 581-7894
Telefacsimile: (502) 581-5122
Wire Transfer Instructions:
National City Bank Kentucky
101 South 5th Street
Louisville, Kentucky 40202
ABA# 083-000-056
Reference: Proffitt's, Inc.
Account No.: 5737553042
Attention: Ms. Etta Moore,
Commercial Loan Operations
Signature page 6 of 23
<PAGE>
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ Alex Morton
-----------------------------------------
Title: Commercial Loan Officer
---------------------------------------
Lending Office:
SouthTrust Bank, N.A.
420 N. 20th Street
11th Floor
Birmingham, Alabama 35203
Attention: Mr. Alex Morton
Commercial Loan Officer
Telephone: (205) 254-4990
Telefacsimile: (205) 254-8270
Wire Transfer Instructions:
SouthTrust Bank, N.A.
420 N. 20th Street
Birmingham, Alabama 35203
ABA# 062000080
Account No.: 131009
Reference: Proffitt's, Inc.
Attention: Ms. Tracey Crawford
(ext. 5446)
Signature page 7 of 23
<PAGE>
DEPOSIT GUARANTY NATIONAL BANK
By: /s/ Larry C. Ratzlaff
-----------------------------------------
Title: Senior Vice President
---------------------------------------
Lending Office:
Deposit Guaranty National Bank
210 East Capitol St.
Jackson, Mississippi 39201
Attention: Mr. Larry C. Ratzlaff
Senior Vice President
Telephone: (601) 968-4749
Telefacsimile: (601) 354-8315
Wire Transfer Instructions:
Deposit Guaranty National Bank
210 E. Capitol Street
Jackson, Mississippi 39201
ABA# 065305436
Reference: Proffitt's, Inc.
Attention: Ms. Dorothy Jones
Loan Closing
Signature page 8 of 23
<PAGE>
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ Jim Chapman
-----------------------------------------
Title: Senior Vice President
---------------------------------------
Lending Office:
First Tennessee Bank National
Association
165 Madison Ave.
6th Floor Main Office
Memphis, Tennessee 38103
Attention: Mr. Jim Chapman
Telephone: (901) 523-4273
Telefacsimile: (901) 523-4633
Wire Transfer Instructions:
First Tennessee Bank National Association
165 Madison Avenue
Memphis, Tennessee 38103
ABA# 084000026
Account No.: 1141746870
Reference: Proffitt's, Inc.
Attention: Ms. Deborah Johnson
ext.4188
Signature page 9 of 23
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/ W.J. Brown
-----------------------------------------
Title: Vice President
Relationship Manager
---------------------------------------
Lending Office:
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: Mr. Patrick M. Brown
Relationship Manager
Telephone: (404) 877-1506
Telefacsimile: (404) 888-8998
Wire Transfer Instructions:
The Bank of Nova Scotia
New York Agency
One Liberty Plaza
New York, New York 10006
ABA# 026002532
For Further Credit to:
The Bank of Nova Scotia - Atlanta Agency
Account No.: 0606634
Attention: Atlanta Loan Servicing
Reference: Proffitt's, Inc.
Signature page 10 of 23
<PAGE>
AMSOUTH BANK
By: /s/ Donald M. Sinclair
-----------------------------------------
Title: Vice President
Lending Office:
AmSouth Bank
1900 Fifth Avenue North
7th Floor
Birmingham, Alabama 35203
Attention: Mr. Donald M. Sinclair
Vice President
Telephone: (205) 801-0349
Telefacsimile: (205) 583-4436
Wire Transfer Instructions:
AmSouth Bank
1900 5th Avenue North
Birmingham, Alabama 35203
ABA# 062000019
Account No.:001102450400100
Reference: Proffitt's, Inc.
Attention: Sharon Volland
Ext. 7632
Signature page 11 of 23
<PAGE>
HIBERNIA NATIONAL BANK
By: /s/ Christopher B. Pitre
-----------------------------------------
Title: Assistant Vice President
Lending Office:
Hibernia National Bank
313 Carondelet Street, 12th Floor
New Orleans, Louisiana 70130
Attention: Mr. Christopher B. Pitre
Assistant Vice President
Telephone: (504) 533-2878
Telefacsimile: (504) 533-5344
Wire Transfer Instructions:
Hibernia National Bank
313 Carondelet St., 12th Floor
New Orleans, Louisiana 70161
ABA# 065000090
Account No.:0520-36615
Reference: Proffitt's, Inc.
Attention: National Accounts
Signature page 12 of 23
<PAGE>
FIRST AMERICAN NATIONAL BANK
By: /s/ William R. Stutts
-----------------------------------------
Title: Senior Vice President
Lending Office:
First American National Bank
6000 Poplar Ave.
Suite 300
Memphis, Tennessee 38119
Attention: Mr. William R. Stutts
Senior Vice President
Telephone: (901) 762-5675
Telefacsimile: (901) 762-5665
Wire Transfer Instructions:
First American National Bank
490 Metroplex Drive
Nashville, Tennessee 37211
ABA# 064000017
Account No.:1002295498
Reference: Proffitt's, Inc.
Attention: Frenisa Joy
Signature page 13 of 23
<PAGE>
NORWEST BANK IOWA, N.A.
By: /s/ Douglas C. Barclay
-----------------------------------------
Title: Vice President
Lending Office:
Norwest Bank Iowa, N.A.
M.S. 4019
666 Walnut
7th & Walnut
Des Moines, Iowa 50309
Attention: Mr. Douglas C. Barclay
Vice President
Telephone: (515) 245-3016
Telefacsimile: (515) 245-3128
Wire Transfer Instructions:
Norwest Bank Iowa, N.A.
666 Walnut Street
Des Moines, Iowa 50309
ABA# 073000228
Account No.: 970656
Reference: Proffitt's, Inc.
Attention: Tammy Gregory or Cheryl Hansen
Signature page 14 of 23
<PAGE>
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ John Runger
------------------------------------------
Title: Managing Director
Lending Office:
The First National Bank of Chicago
One First National Plaza
Suite 0086
Chicago, Illinois 60670
Attention: Ms. Debora Oberling
Telephone: (312) 732-9772
Telefacsimile: (312) 732-8587
Wire Transfer Instructions:
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
ABA# 071000013
Account No.:7521-7653
Reference: Proffitt's, Inc.
Attention: Rosario Guzman
Loan Operations
Signature page 15 of 23
<PAGE>
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ David M. Caro
-----------------------------------------
Title: Vice President
Credit Lyonnais Atlanta Agency
303 Peachtree St., NE
Suite 4400
Atlanta, Georgia 30308
Attention: Christina Earnshaw
Vice President
Telephone: (404) 524-3700
Telefacsimile: (404) 584-5249
Wire Transfer Instructions:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
ABA#0260-0807-3
Account No.: 01-24173.0001.00
Credit: CL Atlanta Agency
Reference: Proffitt's, Inc.
Attention: Loan Servicing
Signature page 16 of 23
<PAGE>
THE BANK OF NEW YORK
By: /s/ Paula D. Regan
-----------------------------------------
Title: Vice President
---------------------------------------
Lending Office:
The Bank of New York
One Wall Street, 8th Floor
New York, New York 10286
Attention: Paula D. Regan
Vice President
Telephone: (212) 635-7867
Telefacsimile: (212) 635-1481/1483
Wire Transfer Instructions:
Base Rate Loans: The Bank of New York
--------------- 101 Barclay Street
ABA: 021000018
Commercial Loan Servicing Department
GLA No.: 111556
Reference: Proffitt's
ie: principal, interest, fees
EuroDollar Loans: The Bank of New York
---------------- 101 Barclay Street
ABA: 021000018
Eurodollar/Cayman Funding Area
GLA No.: 111556
Reference: Proffitt's
ie: principal, interest
Signature page 17 of 23
<PAGE>
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Michael J. Reymann
-----------------------------------------
Title: Vice President
---------------------------------------
Lending Office:
U.S. Bank National Association
601 2nd Avenue South
MPFP0601
Minneapolis, Minnesota 55402
Attention: Michael J. Reymann
Telephone: (612) 973-4549
Telefacsimile: (612) 973-0821
Wire Transfer Instructions:
U.S. National Bank Association
601 2nd Avenue South
Minneapolis, Minnesota 55402
ABA #: 091000022
Attention: Commercial Loan Service Center
Account No.: 30000472160600
Reference: for Proffitt's, Inc.
A/C No.: 1735056807
Signature page 18 of 23
<PAGE>
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Cecilia M. Valente
-----------------------------------------
Title: Senior Vice President
---------------------------------------
Lending Office:
Union Bank of California, N.A.
350 California St.
11th Floor
San Francisco, California 94104
Attention: John Cinderey
Vice President
Telephone: (415) 705-5041
Telefacsimile: (415) 705-7085
Wire Transfer Instructions:
Union Bank of California, N.A.
1980 Satrun Street
Monterey Park, California 91755
ABA No.: 122-000-496
Account No.: 070-196431
Attention: Wire Transfer Clearing
192 Note Center
Reference: Proffitt's, Inc.
Signature page 19 of 23
<PAGE>
WACHOVIA BANK, N.A.
By: /s/ William B. Nixon
-----------------------------------------
Title: Vice President
---------------------------------------
Lending Office:
Wachovia Bank, N.A.
191 Peachtree Street, NE, 29th Floor
Atlanta, Georgia 30303
Attention: Lanny Nixon
Vice President
Telephone: (404) 332-4884
Telefacsimile: (404) 332-5016
Wire Transfer Instructions:
Wachovia Bank, N.A.
191 Peachtree Street, NE
Atlanta, Georgia 30303-17517
ABA# 061000010
Account No.: 18-800-621
Attention: Sharon Westmoreland
Signature page 20 of 23
<PAGE>
LASALLE NATIONAL BANK
By: /s/ Michael Burton
-----------------------------------------
Title: First Vice President
Lending Office:
LaSalle National Bank
135 S. LaSalle Street
Chicago, Illinois 60603
Attention: Mr. Michael Burton
First Vice President
Telephone: (312) 904-2677
Telefacsimile: (312) 904-6457
With copies to:
ABN AMRO Bank N.V.
One Ravinia Drive
Atlanta, Georgia 30346
Attention: Mr. Steven B. Farley
Wire Transfer Instructions:
LaSalle National Bank
135 S. LaSalle Street
Chicago, Illinois 60603
ABA# 071000505
Account No.:
Attention: Linda Perez
Signature page 21 of 23
<PAGE>
BANK BOSTON, N.A.
By: /s/ Linda H. Thomas
-----------------------------------------
Title: Managing Director
---------------------------------------
Lending Office:
Bank Boston, N.A.
100 Federal Street
Large Corp., 01-09-05
Boston, MA 02110
Attention: Mr. Peter Griswold
Director
or
Ms. Kathleen Dimock
Assistant Vice President
Telephone: (617) 434-8312/3830
Telefacsimile: (617) 434-6685
Wire Transfer Instructions:
Bank Boston, N.A.
100 Federal Street
Boston, MA 02110
ABA# 011 000 390
Attention: Commercial Loan Services
Admin. 57
Reference: Proffitt's, Inc.
Signature page 22 of 23
<PAGE>
BANK OF MONTREAL
By: /s/ Dennis W. Rourke
-----------------------------------------
DENNIS W. ROURKE
Title: DIRECTOR
---------------------------------------
Lending Office:
Bank of Montreal
115 South LaSalle Street, 13th Floor West
Chicago, Illinois 60603
Attention: Robert Cannon
Telephone: (312) 750-3475
Telefacsimile: (312) 750-1789
Wire Transfer Instructions:
Harris Bank of Chicago
111 West Monroe
Chicago, Illinois 60603
ABA# 071-000-288
Account No.: for Bank of Montreal #1248566
Attention: Client Services
Reference: Proffitt's
Signature page 23 of 23
<PAGE>
Exhibit 10.2
LC ACCOUNT AGREEMENT
This LC ACCOUNT AGREEMENT (the "Agreement") is dated as of February 2,
1998, and made between PROFFITT'S, INC., a Tennessee corporation (the "Pledgor")
and NATIONSBANK, N.A., as Agent (in such capacity herein and together with any
successors in such capacity, the "Agent") for the Lenders (the "Lenders") party
to the Credit Agreement referenced below.
RECITALS
WHEREAS, Pledgor, the Lenders, the Co-Agents (as defined therein) and the
Agent have entered into a Credit Agreement dated as of the date hereof (said
Credit Agreement, as it may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and in effect, hereinafter referred to as the "Credit Agreement");
WHEREAS, as a condition precedent to the Lenders' obligations to make the
Loans or the Issuing Bank's obligation to issue Letters of Credit (as such terms
are defined in the Credit Agreement), the Pledgor is required to execute and
deliver to the Agent a copy of this Agreement on or before the Effective Time
(defined below);
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained herein, the Pledgor and the Agent hereby
agree as follows:
Section 1. Capitalized terms used in this Agreement shall have the
following meanings:
"Cash Account" means the cash collateral account established and maintained
------------
pursuant to Section 2 hereof.
---------
"Collateral" means (a) all funds from time to time on deposit in the Cash
----------
Account; (b) all Investments and all certificates and instruments from time to
time representing or evidencing such Investments; (c) all notes, certificates of
deposit, checks and other instruments from time to time hereafter delivered to
or otherwise possessed by the Agent for or on behalf of the Pledgor in
substitution for or in addition to any or all of the Collateral described in
clause (a) or (b) above; (d) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the Collateral described in
clause (a), (b) or (c) above; and (e) to the extent not covered by clauses (a)
through (d) above, all proceeds of any or all of the foregoing Collateral.
"Effective Time" means the Closing Date as defined in the Credit Agreement.
--------------
"Investments" means those investments, if any, made by the Agent pursuant
-----------
to Section 5 hereof.
---------
<PAGE>
"Secured Obligations" means (i) all Obligations of the Pledgor now existing
-------------------
or hereafter arising under or in respect of the Credit Agreement or the Notes
(including, without limitation, the Pledgor's obligations to pay principal and
interest and all other charges, fees, expenses, commissions, reimbursements,
indemnities and other payments related to or in respect of the obligations
contained in the Credit Agreement or the Notes) or any documents or agreements
related to the Credit Agreement or the Notes; and (ii) without duplication, all
obligations of the Pledgor now or hereafter existing under or in respect of this
Agreement, including, without limitation, with respect to all charges, fees,
expenses, commissions, reimbursements, indemnities and other payments related to
or in respect of the obligations contained in this Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Credit Agreement.
Section 2. Cash Account; Cash Collateralization of Letters of Credit.
---------------------------------------------------------
(i) At such time as there shall be deposited with the Agent funds
pursuant to this Agreement, the Agent shall establish and maintain at its
offices at Independence Center, 15th Floor, 101 North Tryon Street,
Charlotte, North Carolina, in the name of the Agent and under the sole
dominion and control of the Agent, a cash collateral account for the
Pledgor designated as NationsBank/Proffitt's Cash Collateral Account (the
"Cash Account").
(ii) In accordance with Article IX of the Credit Agreement, in the
----------
event that an Event of Default has occurred and is continuing and Pledgor
is required to pay to Agent an amount equal to the maximum amount remaining
undrawn, unpaid or at any time that may become payable under the Letters of
Credit, or at the request of the Agent and election of the Pledgor such
amounts have previously been paid to the Agent for such purpose of being
cash collateral hereunder the Agent shall, upon the later to occur of
receipt of any such amounts and the occurrence and continuation of an Event
of Default, exercise the remedies set forth in Section 12 hereof. Any such
----------
amounts received by the Agent pursuant to Article IX of the Credit
----------
Agreement shall be deposited in the Cash Account. Upon a drawing under the
Letters of Credit in respect of which any amounts described above have been
deposited in the Cash Account, the Agent shall apply such amounts to
reimburse the Agent for the amount of such drawing. In the event the
Pledgor's Letters of Credit are cancelled or expire or in the event of any
permanent reduction in the maximum amount available at any time for drawing
under such Letters of Credit (collectively, the "Maximum Available
Amount"), the Agent shall apply the amount then in the Cash Account
designated to reimburse the Agent for any drawings under the Letters of
Credit less the Maximum Available Amount immediately after such
cancellation, expiration or reduction, if any, first, to the cash
-----
collateralization of the Letters of Credit if the Pledgor has failed to pay
all or a portion of the maximum amounts described above and, second, (a) so
------
long as no Event of Default has occurred and is continuing and so long as
no application of the Collateral shall be made within 25 days of the
expiration of the Pledgor's Letters of Credit then the Agent shall return
to the Pledgor such excess amount not applied to drawings and other amounts
owing with respect to Letters of Credit and (b) otherwise, the payment in
full of the outstanding Secured Obligations.
2
<PAGE>
(iii) Any interest received in respect of Investments of any amounts
deposited in the Cash Account pursuant to clause (ii) of this Section 2
---------
shall be delivered by the Agent to the Pledgor on the last Business Day of
each calendar month or, if earlier, upon cancellation or expiration of or
drawing of the Maximum Available Amount for drawing under the Letters of
Credit, as the case may be, in respect of which such amounts were so
deposited; provided, however, that the Agent shall not deliver to the
-------- -------
Pledgor any such interest received in respect of Investments of any amounts
deposited in the Cash Account pursuant to this Section 2 if an Event of
---------
Default has occurred and is continuing or unless all outstanding Secured
Obligations have been indefeasibly paid in full in cash.
Section 3. Pledge; Security for Secured Obligations. The Pledgor hereby
----------------------------------------
grants and pledges to the Agent (for itself and on behalf of the Lenders) a
first priority lien and security interest in, the Collateral, as collateral
security for the prompt payment in full when due, whether at stated maturity, by
acceleration or otherwise (including, without limitation, the payment of
interest and other amounts which would accrue and become due but for the filing
of a petition in bankruptcy or the operation of the automatic stay under Section
362(a) of the Bankruptcy Code), of all Secured Obligations.
Section 4. Delivery of Collateral. All certificates or instruments, if
----------------------
any, representing or evidencing the Collateral shall be delivered to and held by
the Agent pursuant hereto and shall be a suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance reasonably satisfactory to the Agent. In
the event any Collateral is not evidenced by a certificate, a notation,
reflecting title in the name of the Agent or the security interest of the Agent,
shall be made in the records of the issuer of such Collateral or in such other
appropriate records as the Agent may require, all in form and substance
reasonably satisfactory to the Agent. The Agent shall have the right, at any
time and without notice to the Pledgor, to transfer to or to register in the
name of the Agent or any of its nominees any or all of the Collateral. In
addition, the Agent shall have the right at any time to exchange certificates
or instruments representing or evidencing Collateral for certificates or
instruments of smaller or larger denominations.
Section 5. Investing of Amounts in the Cash Account; Amounts held by the
-------------------------------------------------------------
Agent. Cash held by the Agent in the Cash Account shall not be invested or
- -----
reinvested except as provided in this Section 5.
---------
(i) Except as otherwise provided in Section 12 hereof and provided
----------
that the lien and security interest in favor of the Lenders remains
perfected, any funds on deposit in the Cash Account shall be invested by
the Agent so long as no Default or Event of Default shall have occurred and
be continuing, in cash equivalents.
(ii) The Agent is hereby authorized to sell, and shall sell, all or
any designated part of the Collateral (A) so long as no Default or Event of
Default shall have occurred and be continuing, upon the receipt of
appropriate written instructions from the Pledgor or (B) in any event if
such sale is necessary to permit the Agent to perform its duties hereunder
or under the Credit Agreement. The Agent shall have no responsibility and
the Pledgor hereby agrees to hold the Agent and the Lenders harmless for
any loss in the value of the Collateral resulting from a fluctuation in
interest rates or otherwise. Any interest on securities constituting part
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<PAGE>
of the Collateral and the net proceeds of the sale or payment of any such
securities shall be held in the Cash Account by the Agent.
Section 6. Representations and Warranties. In addition to its
------------------------------
representations and warranties made pursuant to Article VI of the Credit
Agreement, the Pledgor represents and warrants to the Agent (for itself and on
behalf of the Lenders), that the following statements are true, correct and
complete:
(i) At the time the Pledgor delivers the Collateral (or any portion
thereof) to the Agent, the Pledgor will be the legal and beneficial owner
of the Collateral free and clear of any Lien except for the lien and
security interest created by this Agreement; and
(ii) The pledge and assignment of the Collateral pursuant to this
Agreement creates a valid and perfected first priority security interest in
the Collateral, securing the payment of the Secured Obligations.
Section 7. Further Assurances. The Pledgor agrees that at any time and
------------------
from time to time, at its expense, it will promptly execute and deliver to the
Agent any further instruments and documents, and take any further actions, that
may be necessary or that the Agent may reasonably request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable the Agent to exercise and enforce its rights and remedies hereunder
with respect to the Collateral.
Section 8. Transfers and Other Liens. The Pledgor agrees that it will not
-------------------------
(a) sell or otherwise dispose of any of the Collateral, or (b) create or permit
to exist any Lien upon or with respect to any of the Collateral, except for the
lien and security interest created by this Agreement.
Section 9. The Agent Appointed Attorney-in Fact. The Pledgor hereby
------------------------------------
appoints the Agent as its attorney-in-fact, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time during the continuance of an Event of Default in the Agent's reasonable
discretion to take any action and to execute any instrument which the Agent may
reasonably deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to the Pledgor representing any payment, dividend, or
other distribution in respect of the Collateral or any part thereof and to give
full discharge for the same. In performing its functions and duties under this
Agreement, the Agent shall act solely for itself and as the agent of the Lenders
and the Agent has not assumed nor shall be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Pledgor.
Section 10. The Agent May Perform. If the Pledgor fails to perform any
---------------------
agreement contained herein, after notice to the Pledgor, the Agent may itself
perform, or cause performance of, such agreement, and the expenses of the Agent
incurred in connection therewith shall be payable by the Pledgor under Section
-------
13 hereof.
- --
4
<PAGE>
Section 11. Standard of Care; No Responsibility For Certain Matters. In
-------------------------------------------------------
dealing with the Collateral in its possession, the Agent shall exercise the same
care which it would exercise in dealing with similar collateral property pledged
by others in transactions of a similar nature, but it shall not be responsible
for (a) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Collateral,
whether or not the Agent has or is deemed to have knowledge of such matters, (b)
taking any steps to preserve rights against any parties with respect to any
Collateral (other than steps taken in accordance with the standard of care set
forth above to maintain possession of the Collateral), (c) the collection of any
proceeds, (d) any loss resulting from Investments made pursuant to Section 5
---------
hereof, or (e) determining (x) the correctness of any statement or calculation
made by the Pledgor in any written or telex (tested or otherwise) instructions,
or (y) whether any deposit in the Cash Account is proper.
Section 12. Remedies upon Default; Application of Proceeds. If any Event
----------------------------------------------
of Default shall have occurred and be continuing:
(i) The Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein otherwise available to it,
all the rights and remedies of a secured party on default under the
applicable Uniform Commercial Code (the "Code") as in effect at that time,
and the Agent may, without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange or broker's board or at any of the Agent's offices or
elsewhere, for cash, on credit or for future delivery, and at such price or
prices, and upon such other terms as the Agent may deem commercially
reasonable. The Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten (10) days' notice to the Pledgor of the time
and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The Agent shall not be
obligated to make any sale of the Collateral regardless of notice of sale
having been given. The Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it
was so adjourned.
(ii) In addition to the remedies set forth in part (i) above and in
accordance with the provisions of Section 2 hereof, any cash held by the
---------
Agent as Collateral and all cash proceeds received by the Agent in respect
of any sale of, collection from, or other realization upon all or part of
the Collateral shall be applied (after payment of any amounts payable to
the Agent pursuant to Section 13 hereof) by the Agent to cash collateralize
----------
the Pledgor's Letters of Credit and thereafter to pay the Secured
Obligations.
Section 13. Expenses. In addition to any payments of expenses of the
--------
Agent pursuant to the Credit Agreement or any Loan Document, the Pledgor agrees
to pay promptly to the Agent all the reasonable costs and expenses which the
Agent may incur in connection with (a) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral, (b)
the exercise or enforcement of any of the rights of the Agent hereunder, or (c)
the failure by the Pledgor to perform or observe any of the provisions hereof.
5
<PAGE>
Section 14. No Delay's Waiver, etc. No delay or failure on the part of
----------------------
the Agent in exercising, and no course of dealing with respect to, any power or
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Agent of any power or right hereunder preclude other or
further exercise thereof or the exercise of any other power or right. The
remedies herein provided are to the fullest extent permitted by law cumulative
and are not exclusive of any remedies provided by law.
Section 15. Amendments, Etc. No amendment, modification, termination or
---------------
waiver of any provision of this Agreement, or consent to any departure by the
Pledgor therefrom, shall in any event be effective without the written
concurrence of the Agent.
Section 16. Notices. Except as otherwise specifically provided herein,
-------
all notices which are to be sent to the Pledgor or the Agent shall be given in
accordance with the Credit Agreement.
Section 17. Continuing Security Interest; Termination. This Agreement
-----------------------------------------
shall create a continuing security interest in the Collateral and shall (a)
remain in full force and effect until all Secured Obligations shall have been
indefeasibly paid in full in cash, the Revolving Credit Commitments or other
obligations of the Agent or any Lender to make any Loan under the Credit
Agreement shall have expired, the Letters of Credit shall have expired and the
Revolving Credit Termination Date shall have occurred, (b) be binding upon the
Pledgor, its successors and assigns, and (c) inure to the benefit of the Agent,
the Lenders and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c) and subject to the
provisions of the Credit Agreement, any Lender may assign or otherwise transfer
any Note held by it to any other person or entity, and such other person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to such Lender herein or otherwise. Upon the indefeasible payment in
full in cash of the Secured Obligations and cancellation or expiration of the
Letters of Credit and termination or expiration of all Revolving Credit
Commitments and other obligations of the Agent and any Lender to make any Loan
and the occurrence of the Revolving Credit Termination Date, the Pledgor shall
be entitled to the return, upon its request and at its expense, of such of its
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof.
Section 18. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY,
--------------------
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORGIA WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
GEORGIA. UNLESS OTHERWISE DEFINED HEREIN OR IN THE CREDIT AGREEMENT, TERMS
DEFINED IN ARTICLE 9 OF THE CODE ARE USED HEREIN AS THEREIN DEFINED.
Section 19. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
-----------------------
AGAINST ANY PLEDGOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF GEORGIA AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
6
<PAGE>
PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT SUBJECT TO RIGHT OF APPEAL. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE PLEDGOR IN THE
COURTS OF ANY OTHER JURISDICTION.
Section 20. Successors and Assigns. Whenever in this Agreement any of the
----------------------
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, promises, and agreements
by or on behalf of the Pledgor or by and on behalf of the Agent shall bind and
inure to the benefit of the successors and assigns of the Pledgor, the Agent and
the Lenders.
Section 21. Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by the different parties on separate counterparts
and each such counterpart shall for all purposes be deemed an original, but all
such counterparts shall together constitute but one and the same Agreement. The
Pledgor and the Agent hereby acknowledge receipt of a true, correct, and
complete counterpart of this Agreement.
Section 22. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 23. Headings. The section headings in this Agreement are inserted
--------
for convenience of reference and shall not be considered a part of this
Agreement or used in its interpretation.
[signatures follow]
7
<PAGE>
IN WITNESS WHEREOF, the Pledgor and the Agent have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
PROFFITT'S, INC.
ATTEST:
/s/ Douglas E. Coltharp
- ----------------------------- By: /s/ James S. Scully
Executive Vice President and ---------------------------------
- ----------------------------- Name: James S. Scully
Chief Financial Officer ------------------------------
Title: Vice President and Treasurer
-----------------------------
NATIONSBANK, N.A. , as Agent for the
Lenders
By: /s/ Greg McCrery
---------------------------------
Name: Greg McCrery
------------------------------
Title: Vice President
-----------------------------
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